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#421272 - 03/08/13 04:41 AM Probate Question
dial1010 Offline
Member

Registered: 01/19/09
Posts: 435
Loc: CA
Never done probate as there is always something for first time. An executor had listing agreement with me and his relative was buying the property. An executor did not want to list the property in MLS. Any ways long story short, I got the listing agreement and prepared purchase agreement. I'm not sure if the seller (executor) submitted the listing agreement along with purchase agreement to his attorney. The judge ok'd the sale, he showed me the order from judge which states, private sale and agreed with sale/purchase price, where it states sale price $1234k, no commission is payable.
I'm confused now. Does it mean I'm not getting paid when the deal is done even though I do have a listing agreement. I have all the documentation. Seller and buyer are in contract. The seller has asked his attorney for "no commission" but he has not responded yet.
Any feedback will be appreciated.

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#421479 - 03/11/13 06:18 PM Re: Probate Question [Re: dial1010]
Dodger52 Offline
Member

Registered: 10/14/11
Posts: 266
Loc: Montana
Originally Posted By: dial1010
The judge ok'd the sale, he showed me the order from judge which states, private sale and agreed with sale/purchase price, where it states sale price $1234k, no commission is payable.
I'm confused now. Does it mean I'm not getting paid when the deal is done even though I do have a listing agreement. I have all the documentation. Seller and buyer are in contract. The seller has asked his attorney for "no commission" but he has not responded yet.
Any feedback will be appreciated.


Short answer... no you are probably not getting paid.

My guess; If the relative had an interest in the estate, the court probably determined this transaction fell outside of your listing agreement. That's not advice just a guess.

Next time you could get the listing approved before submitting the offer, but the results may be the same. You might see if you can get the listing approved as a backup in case the sale were to fall, but aside from that I don't see much hope here.
_________________________
Dodger52 (Chris)
Prudential Montana Real Estate
www.MT-RE.net
www.facebook.com/MissionValleyMTHomes

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#421487 - 03/11/13 07:29 PM Re: Probate Question [Re: dial1010]
Vermont Offline
Major Contributor

Registered: 04/12/08
Posts: 7950
Loc: Vermont's North-East Kingdom
Originally Posted By: dial1010
". . . where it states sale price $1234k, no commission is payable . . ."

Where I come from, that would read $1,234,000; which would make the Commission roughly $74,000 or some portion thereof.

Call me chintzy; but I guess that's enough to justify having your Attorney give it a quick once over to determine if you're being properly cut out of the deal.
_________________________
Dale C. Hittle of GOLDEN RULE PROPERTIES in Glover, Vermont
Where We're Always Striving To Put Together "THE FAIR DEAL"

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#421496 - 03/11/13 09:45 PM Re: Probate Question [Re: dial1010]
DueDiligence Offline
Major Contributor

Registered: 12/05/06
Posts: 1635
Loc: Wild Wild West
Originally Posted By: dial1010
Never done probate as there is always something for first time. An executor had listing agreement with me and his relative was buying the property. An executor did not want to list the property in MLS. Any ways long story short, I got the listing agreement and prepared purchase agreement. I'm not sure if the seller (executor) submitted the listing agreement along with purchase agreement to his attorney. The judge ok'd the sale, he showed me the order from judge which states, private sale and agreed with sale/purchase price, where it states sale price $1234k, no commission is payable.
I'm confused now. Does it mean I'm not getting paid when the deal is done even though I do have a listing agreement. I have all the documentation. Seller and buyer are in contract. The seller has asked his attorney for "no commission" but he has not responded yet.
Any feedback will be appreciated.


Clarify: You say the executor for the estate "had a listing agreement with me". Had he signed the listing agreement?

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#421624 - 03/14/13 04:27 PM Re: Probate Question [Re: Vermont]
Scintillion Offline
Member

Registered: 01/26/12
Posts: 437
Loc: Colorado, USA
Originally Posted By: Vermont
Originally Posted By: dial1010
". . . where it states sale price $1234k, no commission is payable . . ."

Where I come from, that would read $1,234,000; which would make the Commission roughly $74,000 or some portion thereof.

Call me chintzy; but I guess that's enough to justify having your Attorney give it a quick once over to determine if you're being properly cut out of the deal.


I absolutely agree. Significant amount of money to not invest a bit of time into.

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#421663 - 03/15/13 04:12 AM Re: Probate Question [Re: DueDiligence]
dial1010 Offline
Member

Registered: 01/19/09
Posts: 435
Loc: CA
yes, he signed the listing agreement.

I purposely put number $1234k, didn't want to put real numbers.


Edited by dial1010 (03/15/13 04:13 AM)

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#421671 - 03/15/13 03:26 PM Re: Probate Question [Re: dial1010]
DueDiligence Offline
Major Contributor

Registered: 12/05/06
Posts: 1635
Loc: Wild Wild West
Originally Posted By: dial1010
yes, he signed the listing agreement.

I purposely put number $1234k, didn't want to put real numbers.


If the executor signed the listing agreement and did not exempt family members (or other parties) by name from the listing agreement, then you are due a commission. Sellers can stipulate that if this or that person buys the property, no commission will be due. If the executor did NOT so stipulate, then a commission is due IMO. The Estate owes you a commission.

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#421672 - 03/15/13 04:48 PM Re: Probate Question [Re: DueDiligence]
Dodger52 Offline
Member

Registered: 10/14/11
Posts: 266
Loc: Montana
Originally Posted By: DueDiligence
Originally Posted By: dial1010
yes, he signed the listing agreement.

I purposely put number $1234k, didn't want to put real numbers.


If the executor signed the listing agreement and did not exempt family members (or other parties) by name from the listing agreement, then you are due a commission. Sellers can stipulate that if this or that person buys the property, no commission will be due. If the executor did NOT so stipulate, then a commission is due IMO. The Estate owes you a commission.


Due, on the surface I would agree with you, but there is an argument that if the buyer had an interest in the estate, they also have an interest in the property. The executor is not the final say in a probate situation, the listing contract would not be in force until the court approves it. The executor's signature is only valid if approved by the probate court.

Had the listing been approved prior to presenting the contract to the court, you would have a stronger argument for commission. But if the purchasing party has an interest in the estate you might not get paid. Look at it as if you had listed a house for a divorced couple where both hold title, if one ends up buying the other out the transaction would most likely be considered outside of the terms of the listing, there would be only a partial transfer of interest.

This is not a legal opinion, just my understanding of how it works.
_________________________
Dodger52 (Chris)
Prudential Montana Real Estate
www.MT-RE.net
www.facebook.com/MissionValleyMTHomes

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#421681 - 03/15/13 08:16 PM Re: Probate Question [Re: Dodger52]
DueDiligence Offline
Major Contributor

Registered: 12/05/06
Posts: 1635
Loc: Wild Wild West
Respectfully, an executor, personal representative, or fiduciary, when disposing of the real property of the estate may do one of two things: S/he may list the property for sale with an agent by signing a listing agreement, OR s/he may sell the property without an agent.

The former, when an offer is rec'd, the Court will cause public notices to be posted, all the parties to be noticed (including the LA and the BA (if there is one), and a "hearing" will be set after the statutory time elapses. At which hearing, other parties may come forward and bid. An "auction". There may be no "bidders", and the property is sold to the instant buyer. The Court must always honor a listing agreement; however, the Court MAY adjust the compensation.

The latter does not involve a real estate agent. The purchase of the property is a "private sale".

The executor cannot, at his discrestion do either/or. This executor failed to submit the listing agreement to the Court.

With respect to divorced couples, the terms of the Decree control what shall be done with the property. If the Decree states that one spouse will buy out the other, that will be so. If the Decree states that the property shall be sold and proceeds divided, that shall be so. Decrees are final. There are no "do-overs".

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#421690 - 03/15/13 10:14 PM Re: Probate Question [Re: DueDiligence]
Dodger52 Offline
Member

Registered: 10/14/11
Posts: 266
Loc: Montana
Originally Posted By: DueDiligence
The Court must always honor a listing agreement; however, the Court MAY adjust the compensation.

They can only honor what they know about...

Originally Posted By: DueDiligence
The executor cannot, at his discrestion do either/or. This executor failed to submit the listing agreement to the Court.


And here in lies than problem. The executor did not follow the proper order, and the OP now has to suffer. Now that the OP has learned a little more they may be able to avoid this in the future. I do think there is an argument to invalidate the listing contract based on interest in the property, but it is just a legal argument, and the wording of the listing may make my point mute.

Originally Posted By: DueDiligence
With respect to divorced couples,

The law is a wonderfully gray thing, and you can modify a decree, with the approval of all parties (including the judge). So as not to high-jack the thread we should agree that I used a bad example.

My point was that all parties that have an interest in the property should sign the listing agreement. In a probate case without the courts approval, you do not technically have a valid listing agreement. Most of the time we move forward on that agreement without the approval, but it does leave the listing agent exposed should the executor not follow the "rules".
_________________________
Dodger52 (Chris)
Prudential Montana Real Estate
www.MT-RE.net
www.facebook.com/MissionValleyMTHomes

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#421691 - 03/15/13 11:18 PM Re: Probate Question [Re: dial1010]
Vermont Offline
Major Contributor

Registered: 04/12/08
Posts: 7950
Loc: Vermont's North-East Kingdom
Here in Vermont, the Executor/trix is required to first obtain a "License to Sell" from the Probate Court before entering into a Listing Agreement on behalf of the Estate.

But many do not do this, so the Listing Agent should see evidence that the Party s/he is dealing with has already been appointed to handle the Estate AND has been issued the required "License to Sell" by the Probate Court.

Sometimes properties are improperly listed (invalidly) and get to the point of having a Purchase and Sales Agreement in place already before an astute Buyer's Attorney takes the wind out of everyone's sail and slows the whole process down.

Can't really blame the Estate . . . . few people take on this responsibility more than once in a lifetime; and everyone else in the family is anxious and pushing to wrap things up to get the proceeds; so the Court has a very valuable function to perform here.
_________________________
Dale C. Hittle of GOLDEN RULE PROPERTIES in Glover, Vermont
Where We're Always Striving To Put Together "THE FAIR DEAL"

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#445507 - 05/13/15 01:09 AM Re: Probate Question [Re: Vermont]
dial1010 Offline
Member

Registered: 01/19/09
Posts: 435
Loc: CA
I know it was an old post but I got the commission, double ended :-)

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#458933 - 08/30/17 03:35 PM Re: Probate Question [Re: dial1010]
Probate Expert Offline
Junior Member

Registered: 08/15/17
Posts: 2
Loc: USA
Getting intimidated by someone you hired to represent you seems silly, but thinking about it, it makes sense.
Hopefully they are intimidating, so that the other side can feel pressured. at the same time, making sure to remember that the probate lawyer is working for your behalf is something to keep in mind at all times.

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