[WSBAPT] Mixed Real Estate and Probate Question

[Paul Neumiller]

Listmates:  I have spoken with another attorney and with a broker who both feel that it is in error for a broker/realtor to not verify the seller's authority before the broker allows the potential seller to sign a listing agreement and a purchase and sale agreement.  While my client has no interest in using this as a sword against the broker under these circumstances, my client is interested in using this information as a shield against the broker for potential commissions. Any attorney/brokers with thoughts or input on this matter?
 

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Monday, October 7, 2019 1:35 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Mixed Real Estate and Probate Question

Listmates:  To Probate or Not to Probate.  That is the question (with apologies to the Bard).  Mom dies leaving a reverse mortgage for a residence with almost zero equity (after commissions, costs, etc), high credit card debt, medical costs, etc.  plus two sons living on the property, one disabled and one a convicted sex offender.  Easily an insolvent estate.  Client is named first as PR under Mom's Will but probate NOT opened.  BUT, before the named PR/client consulted with me, the reverse mortgage lender and all of the siblings/heirs convinced him to list the residence for sale.  Soooo, without legal authority, the client, supposedly on behalf of the Estate of Mom, listed the residence for sale with a broker, the broker has shown the house, and the client has signed (once again on behalf of the Estate of Mom) purchase and sale documents to sell the residence.  And now, as you have guessed, the title company has stated that client needs to open probate and receive Letters Testamentary to complete the sale.

Client, who is living off of food stamps and can't afford anything, wants to walk away and let the chips fall where they may.  In other words, let the reverse mortgage lender foreclose on the residence.  The other creditors will probably give up and write off the debts (6 credit card companies and 3 hospitals.)  So, my main concern is the client's liability for signing the listing agreement (earned commissions) and liability to the buyer for signing the purchase and sale agreement and then backing out.  Being disabled and on food stamps, the client is not worried about his credit rating.  Does the client have ANY liability when he was never appointed by a court as the official PR?  Due to the nature of the insolvency, I doubt we could even get nonintervention powers, causing it to be a very expensive probate (with, ahem, no money to pay the probate attorney).  The broker and the buyer knew this was a sale out of the Estate of Mom.  While it's possible the buyer might move on to the next house rather than sue about this house and the broker might be willing to walk away from theoretical commissions from an indigent and disabled defendant, I don't want to rely on that occurring.  Any thoughts?  Is there exposure to liability?  

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