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Probate Realtor Kathleen Daniels received a call from a potential personal representative looking for help outside Santa Clara County which is the area she serves. Letters Testamentary had not been issued.
Calls from out of our service area happen frequently. We explain the locations we serve and tell people that we do not have legal resources to recommend outside of our service area. We may also suggest how and where they can find the help they need. If anyone needs a recommendation for a real estate agent outside Santa Clara County or anywhere in the United States, we do have real estate resources to recommend.
For purposes of this scenario, the caller shall be referred to as “Sheila”.
After hearing Sheila out, and listening to her tears, knowing what a predicament she was in, Kathleen did something she has never done before. She spent several hours researching online for probate attorneys in that County. She made more than a few calls and sent more than a few emails.
Some attorneys returned Kathleen’s calls and emails, and others did not. Of those that returned Kathleen’s call, she only found one attorney that would take on the case given the small value of the estate. What they would not do is waive the requirement for a $1,000-$2,000 retainer designed to cover filing fees and costs. Probate attorneys are paid statutory fees. Statutory fees are calculated based on the appraised value of the property. You can learn more about statutory fees, in How Much Does Probate Cost in California.
Sheila needed some time to get the $1,000 retainer. Once she had the money, she scheduled an appointment with the law firm to open probate. Unlike Santa Clara County, which, post COIVD, was taking 4-5 months to get a new hearing date, that county is only 5-6 weeks out.
Desperate to sell the home, we advised Sheila that we would be happy to refer her to a local agent to list the home. Sheila was adamant about getting a “quick sale”.
According to Sheila, there were other heirs to the estate that agreed to waive their rights and allow their sibling Sheila to inherit the total amount from the estate. Apparently, the home was the only asset.
Sheila asked if she had to use the real estate agent we assigned. Our response was, we do not assign real estate agents. You can hire the agent of your choosing. We do urge representatives to hire an experienced and qualified agent. Doing so, in part, is their fiduciary duty which involves a high standard of care. We offer the service of recommending a local agent who provides probate real estate services to ensure the sale is managed properly and professionally.
It was at that point that Sheila ceased communication with Kathleen. Not a problem. Her heart went out to Sheila because of the story she told about her situation. Kathleen’s heart led her to do what she could to help.
The Realtor® we intended to connect Sheila with reached out to us asking for status. We advised that we had not heard anything back. It was at this point that we decided to check the Multiple Listing Service (MLS) to see if the home was listed. Lo and behold, it was. Not only was it listed in that local MLS, but it was also under contract, meaning the would-be future personal representative not only signed the listing agreement without court authority but also signed the purchase agreement. The note in the MLS stated “pending court approval”.
It was no surprise to see in the Multiple Listing that the Listing Agent was also the agent representing the buyer. This is what is referred to as dual agency. Dual agency is legal in the State of California. Our sense is, based on the initial conversation with Sheila, she had already found someone that would give her the “quick sale” she wanted. The irony here is that the “quick sale” cannot close until the probate process is followed. Learn How an Executor Sells a House.
Did Sheila get the highest and best price and terms for the sale of the home by listing it and selling it with an agent who effectively sold it off the market to an investor group and then posted the sale in the MLS?
As for entering into a contract with someone that does not have the probate court’s authority, we will leave that up to the court to decide.
We know Sheila wanted a “quick sale”. We also know she knew the probate process because we explained it to her and found the probate attorney that would work with her.
Out of mere curiosity, we checked the probate cases in that county. Lo and behold, the case had not been filed. We do not know how the attorney prepared the Petition for Probate. We do not know if Sheila will be granted full authority or limited authority under the Independent Administration of Estates Act (“IAEA”).
If the sale of the real property required court confirmation, the judge may not approve the sale. If I were the Judge (that is a big IF) and I had all of the facts presented to me, I would find it all very questionable. There would be a lot of explaining to do. I would question the integrity of the agent that listed and sold the home without the proper documentation. As pretend judge, my argument would be that the signor lacked capacity at the time the agreements were signed therefore the agreements are invalid.
Letters Testamentary | Probate Realtor Kathleen Daniels Best Practices
Prior to entering into a Listing Agreement, Kathleen Daniels examines the preliminary title report she obtains from her trusted title and escrow company. The title report tells her how the title to the property is currently held.
If the title is held in the name of Benjamin Franklin and Betsy Franklin as husband and wife as joint tenants, or any other form of holding title, and both Benjamin and Betsy are deceased, and a probate case has not been filed with the court, therefore, Letters are not issued, then Kathleen Daniels is NOT going to enter into a Listing Agreement.
Why would anyone agree to list a probate home and enter into a purchase agreement when the person signing the listing and purchase agreement does not have the authority from the probate court to sell the home?
It is not like this can be slipped under the title and escrow radar. The title company requires a certified copy of the Letters. With the certified copy of the Letters, they update the title in the name of the probate estate, in that county, and the probate case number. In order to provide a clear title the title company needs to verify that the person selling the home has the legal authority to sell it.
Verifying the person signing has the legal authority to sign is exactly what a Realtor listing a home for sale needs to do as well.
Kathleen Daniels experience and qualifications speak volumes.
The following is the opinion of Kathleen Daniels based on her education, training, knowledge, and experience with probate and basic contract law.
Pertaining to probate and the fact pattern of Sheila’s situation.
California Courts and all courts within the counties in the state have jurisdiction over probate matters.
How to Become a Personal Representative for an Estate
Simply stated, generally speaking, the probate process is as follows:
- The Petition for probate gets filed with the court where the deceased person resided.
- An Order for Probate and Letters are submitted when the Petition for Probate is filed.
- The hearing date is set by the court.
- At the hearing, the Probate Judge approves the Petition, signs the Order, and Letters are issued.
The Letters are what authorize the estate representative to act on behalf of the estate.
If the person who signs the listing agreement does not have Letters, they do not have the “legal” authority to sign the listing agreement.
Certified Probate Real Estate Specialist (CPRES)
We are not attorneys, and we certainly are not judges. Kathleen Daniels is a certified probate specialist and certified in professional management for trustees. Knowing the law and advising people on the law are two different things.
Training, knowledge, and experience do make a difference. If are an estate representative with Letters Testamentary or awaiting letters and need help selling a probate home, Probate Realtor, Kathleen Daniels can help and is a consultation call away.