I have done a few Estate sales and understand the probate clause, but what happens if the Seller passes away after the house has been sold but has yet to close? I understand the APS. I am NOT suggesting anyone wants out of the deal! I am hoping the closing date negotiated would still be fulfilled but does the will need to be probated before closing?
The Agreement was signed by the Seller and is binding upon his estate. The quick issue: is who is now acting for the Estate?
If there was a Will, then we have an Estate Trustee who has authority to act from the moment of death. If there is no Will, then we have an intestacy, and must wait until the Court has appointed someone as the Estate Trustee. That person only has authority from the time of the Court Order. Unfortunately, that could easily be 4 to 6 months from the date of death.
With Covid, we may potentially face an additional 3 months delay.
It’s possible that the Seller’s Estate won’t be ready for the scheduled closing date. If the Buyer needs to live there, perhaps a rental arrangement could work. Otherwise, the Buyer is free to walk. If the Buyer is an investor, this is great news! No closing, no money, just the deposit and the whole property is tied up.
You should also note that the insurance company will only insure occupied properties, so if it’s vacant, you need a “vacancy permit”. They are issued for 30 days, and likely will only be renewed once.
Hence, the Buyer should place their own insurance on the property as well.
Brian Madigan LL.B., Broker