Estate Sale: Closing Extension Clause DELAYED PROBATE
Here is a clause provided by a listing agent to be included in the Agreement of Purchase and Sale:
“The Buyer and Seller agree that the seller, upon giving a minimum of 14 days written notice to the buyer (excluding Saturday, Sunday or statutory holidays), may unilaterally extend the date set for completion, one or more times, not to exceed 90 days in total, for the purpose of obtaining a Certificate of Appointment of Estate Trustee. Further, in the event that the probate of the will and the obtaining of the Certificate of Appointment of Estate Trustee is not complete within the 90 day extension period, the Buyer shall have the opportunity to be released from this Agreement of Purchase and Sale and the deposit shall be returned to the Buyer in full without deduction.”
Is this an appropriate clause for inclusion from the Buyer’s perspective?
This is a clause often proposed by lawyer’s acting for the Seller. The application for a Certificate of Appointment to Court may require a little more time. Hence, the request for the 90 day extension.
However, the Buyer should have their own clause for an extension and 90 days is a little too short.
I think it should be at least 180 days.
Also, there should be a good faith clause obligating the Seller to proceed asap etc. If the market starts to accelerate, then the Seller wants to slow down the process.
Brian Madigan LL.B., Broker