Who signs the listing agreement on “estate” property?

QUESTION: I am taking a listing on property where the owner, Jack Smith, recently died.  He is survived by his four children.  Two of them have are acting as executors of the estate.  One of them told me that Jack left the property equally to the four kids.  I need to know how to list the property.  Someone told me that I should put “Estate of Jack Smith” as the “Seller” in the listing agreement.  Is that the right way to do it?

ANSWER: No.  This subject is addressed in NCAR form 101G, the Guidelines for Completing the Exclusive Right to Sell Listing Agreement (form 101).  Under “Names of Seller and Firm” on the first page, the Guidelines provide the following guidance:

In the majority of the situations, immediately upon death of the owner, the heirs or devisees under the will become the owner of the interest in the Property belonging to the deceased. All such heirs or devisees and their spouses should be named as Seller along with the executor or administrator (personal representative).

You probably should have the four children listed as “Seller” as well as the spouses of any of them who may be married.  It would be a good idea to indicate in the listing agreement that the two children who are acting as the executors are signing both individually and as executors of the estate of Jack Smith.

We’ve italicized the word “majority” in the excerpt above because there are exceptions.  For example, a will can give authority to the executor to sell property without the consent of the heirs.  Thus, as the Guidelines state, you should consider getting legal advice from an attorney on the proper way to complete the “Seller” part of the listing agreement in your situation.  If an attorney is assisting in the administration of the estate, he or she may be willing to offer you guidance on the proper way to complete that part of the listing agreement.

For more information about the proper handling of “estate” property, see Legal Talk: What the listing agent should look out for when the most recent owner of the property is deceased, which can be found in the “Insight Articles” section of the archived Q&As on the NC REALTORS® website, and How to Properly Handle Estate Property Sales, which can be found in the archived Q&As in the “Other Laws and Rules” section.

You should be aware that there are guidelines for completing several NCAR forms that may be helpful in answering your questions.  In addition to the Guidelines referred to above, there are guidelines for completing the following forms (listed by form number): 103, 201, 220, 310-T, 601, 610, 620-T, 760, 770 and 800-T.