REALTORS® regularly call the firm to assist with a scheduled closing where the seller does not yet have title to the property because the property hasn't been administered from an estate of a deceased person. We find that often there is a misunderstanding that the Personal Representative's Deed and Certified Letters are "off-the-shelf" items that an attorney can produce on a moment's notice to facilitate the closing.
On the contrary, a Personal Representative's deed is a fiduciary act that must take place in the context of proper estate administration. An attorney who would produce a document selling or distributing estate property, without an opportunity to supervise estate administration as a whole, would be assuming potential liability for improper administration of the property.
In this situation, the would-be seller has two choices: 1) hire an estate attorney to represent the personal representative in the transaction, or 2) go it alone. Hiring an estate attorney will usually require providing the attorney with a retainer and all of the estate intake information necessary to the representation. Going it alone will mean filling out the probate court applications to obtain a personal representative appointment, finding a published form for the personal representative's deed, and providing whatever other assurances or documents requested by the title company to close the transaction.
The estate attorney does not represent the REALTOR® or the title company in these transactions. The attorney must represent the personal representative of the estate, who is the person authorized by the court to deal in estate property. Occasionally, an attorney will represent an out-of-state law firm which is serving as estate attorney for a "foreign domiciliary personal representative," meaning a personal representative appointed by another state for a decedent domiciled there, who happened to own Colorado real property.
Knowing that the estate attorney must conduct a proper intake procedure to get sufficient estate information to prevent an improper administration of the property, REALTORS® can assist their clients by not waiting until the last minute to obtain the personal representative's deed, but encouraging the would-be seller to retain estate counsel as soon as these issues become apparent.
Miriam Abrams Goodman is no longer with Frascona, Joiner, Goodman and Greenstein, P.C.
Disclaimer -- Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.