by Phoenix attorney Christopher A. Combs, partner with Combs Law Group, P.C.

Question: I signed a purchase contract and opened escrow for the purchase of a home in Tucson. The escrow was scheduled to close in thirty days. Last week the seller was murdered by her boyfriend who then killed himself! In a recent article you stated that, if the seller dies prior to the close of escrow, the personal representative of the estate has the authority to execute the deed to close the transaction. The seller’s mother said that the family is trying to locate the seller’s will, and that they have not yet filed the probate paperwork to have a personal representative appointed. What do I need to close the purchase of this home?

Answer: If the seller died with or without a will, a probate generally still needs to be opened to distribute the seller’s assets, including the home. If the seller’s heirs do not open a probate within forty-five days after the death of the seller, you as a creditor of the seller are entitled to open a probate and have a personal representative appointed. Once a personal representative is appointed, the personal representative can execute the deed to complete the closing of the sale of the home to you. If the personal representative will not execute the deed to you, you will need to file a specific performance lawsuit against the personal representative. Note: Although under any circumstance you should be entitled to close on the sale of your home, there are several exceptions to the requirements of opening a probate, e.g., the seller had transferred the home to a revocable trust. You should consult with an estate planning attorney for more information.

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