If you're a Realtor, it’s easy to get excited about a new listing opportunity. But sometimes, what seems like a straightforward appointment turns into a potential legal headache, especially when it involves estates or divorce.
Here are two of the most common legal issues we see that can delay closings or invalidate your Listing Agreement entirely, and what you should do when you spot them.
🚩 Issue #1: The Owner Has Passed Away, and You're Talking to a Child or Heir
This is a common (and risky) scenario: You arrive at a listing appointment and the person says,
"I'm the Executor of my mom’s estate."
They may even show you a will that names them as executor. That may sound official, but unless legal steps have been taken, they don’t yet have the authority to sign a Listing Agreement or sell the home.
Here's What You Need to Know:
A will by itself does not give someone the legal right to sell property.
Before someone can act as the Executor of an estate in Illinois:
- The will must be filed with the county court
- A probate case must be opened
- A judge must approve the will and issue “Letters of Office”, the legal document that officially appoints someone as the Executor
Without those Letters of Office, the person has no authority to act – even if they’re named in the will.
What You Should Ask:
- Have you filed the will with the county and opened a probate case?
- Has the court issued you Letters of Office?
If the answer is yes, great! Ask for a copy of the Letters of Office.
If the answer is no, they likely cannot sign a listing agreement or transfer title, unless they happen to be the sole heir and certain legal shortcuts are available.
💡 In cases where probate hasn’t been filed but the estate is small, it may be possible to sell without opening a full probate case, but only if all legal heirs agree. If you’re unsure, call Andrew or Alex, even during your appointment. We’re happy to help.
🚩 Issue #2: The Owner Is “Separated” or “Going Through a Divorce”
Another common red flag: The homeowner tells you they’re separated or in the middle of a divorce.
In Illinois, spouses – even if not on the deed – may have legal rights to real estate. This can be true even if the marriage occurred after the property was originally acquired.
If you move forward without understanding the full legal picture, the listing (and sale) could fall apart.
What You Should Ask:
- Have you officially filed for divorce?
- Who is the attorney representing each party?
If the divorce hasn’t been filed yet or is still pending, it’s critical to get legal guidance before proceeding with the listing. You may need signatures from both spouses or court approval depending on the situation.
Final Tip for Agents
These situations can seem complicated, but you don’t have to navigate them alone. Before you sign a listing agreement involving an estate or divorce, contact Macon County Title. Andrew or Alex can walk you through what’s needed to protect yourself and your client.
Our goal is to help you close deals smoothly, and legally.