Question:
If a client passes away and they have a Power of Attorney (POA) can I still sell the property?
Answer:
The question here is not clear. If you are talking about the Listing itself, it will continue following the death of the deceased. If you already have an Agreement of Purchase and Sale in place, but the transaction has not closed, it too remains in place and is enforceable against the deceased. The Attorney is still around but they can’t sign anything.
Depending on the particular jurisdiction there may have been some opportunities available. If we are talking about the Listing you could have provided for some automatic extensions in the case of death.
If we are taking about the Agreement (APS), the Attorney no longer has any authority. So, you could have transferred the property in trust, to a corporation or to a joint tenant. That way, there will be someone else available to sign. The POA has come and gone.
If this death was a complete surprise, it’s not your fault. On the other hand, if the deceased was “on his deathbed” and you took not steps to ensure a smooth transition, then, it is your fault.
There are also potential tax consequences which should be taken into consideration as well.
Brian Madigan LL.B., Broker