Realtor Tip of the Week: Is Your Seller Deceased?
Over the past several months, I have had a number of closings delayed because the seller or one of the sellers was deceased. You have many issues to address during your initial listing appointment, but this is a significant matter that shouldn’t be overlooked. Below are suggestions to eliminate or minimize a delay to your closing.
Prior to the first meeting with a prospective seller, research who actually owns the property. You can accomplish this by obtaining a copy of the deed through the Georgia Clerks Authority’s website (www.gsccca.org). There is a cost associated with this website, but many of the brokerages already have an account. As long as the individual(s) on the most current deed are at the listing appointment and sign the listing agreement you are good to go (assuming they remain alive through the day of closing). Do not rely on the property record card. These cards are only updated once a year and are not necessarily accurate as it relates to ownership.
If there are multiple owners and they are not all present you must ask where they are. You must know if he or she is out of town, serving overseas, etc. If the response you get is that one of the sellers is deceased, you must know if you have a “survivorship deed.” A survivorship deed is a deed that automatically transfers the deceased’s interest in the property to the other person on title. The survivorship language (“joint tenants with rights of survivorship”) will be in the body of the deed that you obtained through the Georgia Clerks Authority’s website. If you have a survivorship deed there is nothing further for you to do as an affidavit of death (with a certified copy of the death certificate) will be recorded at closing. Once the property goes under contract you will want to let the closing attorney know that one of the sellers on title is deceased (but that a survivorship deed exists). Also, go ahead and ask your seller to obtain a certified copy of the deceased’s death certificate as we will need it at closing.
If the owners do not own the property as joint tenants with rights of survivorship, ask the seller whether probate has been started (and if so what state the estate is being probated). If probate has been commenced, obtain the probate attorney’s contact information and call him/her. Find out when the executor (when there is a will) or administrator (when there is not a will) will be sworn in. The executor or administrator is the individual who will have the authority to transfer the property on behalf of the deceased’s estate. If there is not a will and probate has been commenced ask the probate attorney whether a court order permitting the sale will be required. If probate has not been commenced, contact your preferred closing attorney for a recommendation for a probate attorney (many closing attorneys also handle probate matters). Please remember that a deceased’s estate must be probated whether the deceased had a will or not.
If there is only one owner of record and that person is deceased you must ask whether probate has been initiated. If not, you now know what to do.
I also want to mention something about powers of attorney (“POA”). Please understand that a power of attorney is only effective if the individual who signed the POA is still alive. Otherwise, the POA is no longer effective. Also, if one of your sellers mentions they (or someone else) has a POA for one of the sellers, get a copy and send it to your preferred closing attorney for a quick review. Every once in a while the POA that a seller presents for use at closing is not properly executed or defective in another way.
I hope that the information above is helpful and will alleviate some stress down the road.
As always, if you need help with anything at all, please do not hesitate to contact me anytime at (912) 484-1996 (even nights and weekends) or email me at jgerber@brannenlaw.com.