No Probate Yet? Use a Flexible Closing Date

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I’m seeing it more and more — which means you are too.

Estate sales.

And as a generation with high homeownership continues to age, they’re only going to get more common.

Now, I know you’ve got clients who want to list before probate is granted.

So if you do list before probate is complete, there’s one thing you really need to protect: the closing date.

Because without the CAET, the seller can’t legally transfer title — and a fixed closing date they can’t meet? That becomes a breach.

Aside from setting the closing as far out as possible, here’s what I recommend adding to Schedule A:

“The Buyer and Seller agree that the Seller, upon providing a minimum of ten (10) 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 180 days in total, for the purpose of obtaining a Certificate of Appointment of Estate Trustee.”

This gives your client flexibility — without having to renegotiate. Just ten days’ notice, and the timeline moves.

If the buyer will accept it, I also recommend adding this second paragraph:

“In the event that the Seller is unable to obtain the Certificate of Appointment of Estate Trustee within the time period set out above, this Agreement shall be null and void and the deposit shall be returned to the Buyer in full without deduction.”

It’s harder to negotiate — especially in a buyer’s market — but it gives your client a clean exit if probate drags out.

Because at the end of the day, the biggest risk in accepting an offer before probate is simple: not having the CAET in time to close.

So if your clients insist on moving forward, make sure you’re protecting them with a flexible — or cancellable — closing date, and the right clause(s) to support it.