Who Gets to Pick the Realtor When Selling a Probate Property?

Written by Posted On Monday, 16 September 2019 08:10

One question that has been coming up a lot recently is who gets to choose the Realtor for a probate listing. For those of you who are unfamiliar with probate, please check out our website www.probatefirm.com for more information. Real quick though – probate, when it comes to real estate, is a process of taking a property that was owned by someone who passed away and having the court say who the new owner is. I should clarify that by saying it is usually owners, plural, and not owner, singular.

As you can imagine, most people have more than one child. So, when mom and dad pass away and they leave their home to their two or more children, who gets the say-so as to which Realtor will assist in the selling of the property? Chances are one of those siblings knows a Realtor, has a friend that is a Realtor or is even a Realtor themselves. This can present problems when the other siblings want to use their own Realtor, or at a minimum, they don’t want their sibling acting a Realtor. So, who gets to choose?

Well, the first question to answer is to figure out who is going to be the Personal Representative. The Personal Representative, also known as the Executor, is the individual named in the Last Will and Testament, if there is one, or named by the Court, if there is not a Will, to administer the affairs of the person who died. Most of the time, the Personal Representative is a spouse, a child, a family member or maybe a friend. The Personal Representative could in theory be almost anyone, but in my experience, it is usually the surviving spouse or one of the children.

The Personal Representative is a relatively important position as he or she is the person authorized to sign any listing agreements, contracts and is the person who will be at closing. So, if you the Realtor want to list a probate property or help your buyer purchase a probate listing, you need to make sure you are working with the Personal Representative. I cannot stress that enough. ONLY the Personal Representative has the authority to sell the property. Even if there is only one child and he or she swears the property is theirs, if they are not the Personal Representative, they don’t get to sign any contracts. It may be true that they will ultimately inherit the property, but if someone else is the Personal Representative, you would be wasting your time speaking with the non-Personal Representative.

As you might have guessed, it is generally the Personal Representative who is going to select the Realtor who will list the probate property. The probate attorney handling the probate may suggest someone, however, ultimately it will be the Personal Representative who gets to decide. That being said, sometimes the court may need to approve who will be the Realtor. This usually comes up when the beneficiaries do not get along.

Here is an example: let’s say that there is a brother and sister who are inheriting the family home. The brother is named in the Will to serve as Personal Representative. The court appoints him as Personal Representative and he wants to choose his friend to be the Realtor. The brother and sister do not get along and the sister wants to use her friend as the Realtor. The sister could challenge the brother’s selection and there may be a court hearing where the judge will decide who gets to be the Realtor. However, most likely the court will allow the brother to choose the Realtor unless there is some good reason why that Realtor is unqualified. But generally, even if someone challenges who the Personal Representative wants to use as the Realtor, the court will side with the Personal Representative.

So, for you Realtors out there looking to sell probate listings, your need to find the Personal Representative and/or the attorney representing them. The attorney can suggest who the Personal Representative should use but, in my experience, most everyone knows a Realtor and they would just assume use someone they already know. Therefore, your best bet is to locate the Personal Representative. Depending on the state and county you are in, you may be able to go to public records, search the probate filings and locate the name and address of the Personal Representative.

If you have any probate related questions, feel free to call The Probate Law Firm at 305-456-3255 or visit us at www.probatefirm.com.

Happy prospecting!

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