What to do in the event the seller passes away

The brokerage contract is not automatically terminated due to the client’s death. However, certain actions should be taken.

After an effective marketing and several visits to the property, you learn that the seller or one of the sellers passed away suddenly.

Is the brokerage contract still valid despite the seller’s death?

The contract is not terminated due to the seller’s death. Before continuing with the marketing, a good practice is to send to the information listing service a letter about the situation signed by the agency executive officer to put the property temporarily off the market. The broker must then obtain the documents to ensure that he or she will deal with the person legally entitled to do so. Until then, the broker cannot have any transaction documents signed, terminate the contract, submit promises to purchase, or authorize visits.

Important documents

It is essential that brokers know and understand succession documents. Because of the specifics of the Law of Succession, brokers must take into account their limits and should not hesitate to consult a notary if necessary. 

For more information, please read this article.

What documents should be obtained and kept?

Before moving forward, the broker must obtain, understand and keep the following documents:

• The testament (a certified true copy or a certified true extract outlining the simple or full administration powers of the liquidator)
• The declaration of transmission
  • The best practice is to have it on hand before moving forward. However, it is possible to proceed without the declaration of transmission if the broker has in his possession a copy or certified extract of the will and the will search certificate and has consulted the client's notary. It is important in this situation that the broker adequately advise the seller about the deadlines to consider for signing the deed of sale (the declaration of transmission must be signed and published before transferring the titles to the buyer)
• The will search certificate (necessary only in the absence of the declaration of transmission)

What is the difference between full and simple administration assigned to the liquidator?

The broker must read the documents and check whether the appointed liquidator has full or simple administration. Full administration empowers the liquidator to sign all the documents related to the sale of the property on behalf of and for the estate. For its part, simple administration does not allow the liquidator to make decisions alone concerning the estate and the sale of the property. The broker must then obtain the signature of all the heirs or a power of attorney from them in favour of the liquidator or another trustworthy person.

If the heirs do not want to continue putting the immovable up for sale

Amendments to the brokerage contract

Once the broker has the documents in hand and the proof that allows him to determine who is entitled to negotiate, he must complete an Amendments form (AM) to put the property off the market or terminate the brokerage contract. If the contract is terminated or the property is taken off the market, the broker may agree with the heirs on an amount to be paid to him as compensation. In the absence of an agreement between the parties, the broker must not prevent the contract from being terminated or the property from being taken off the market.    

If the heirs want to continue putting the immovable up for sale

Amendments to the brokerage contract

Once the broker has the documents in hand and the proof that allows him to determine who is entitled to negotiate, he must complete an Amendments form (AM) to report the following elements:

• The changes relating to the identification of the parties to the brokerage contract

e.g. Identification of the parties

With reference to the "Identification of the parties" section:
Succession of the late Mr. Guy Jovent
Represented by Mr. Albert Jovent
357 Laplante Street,
Verdun, Québec J4W 1K4
ajovent@gmail.com
514-445-4444

If the liquidator(s) do not have full administration, the names of all heirs must appear on the Amendments form. Use an Annex G if you lack space.

• Information relating to identity verification of the liquidator of the succession or of all the heirs, if the liquidator does not have full administration, or of the mandatary appointed by power of attorney by all the heirs.

As to the nature of the relationship between the deceased person and his representative, the broker must for example write “liquidator of the succession” under clause 1.2 of the brokerage contract. He will not have to mention thereafter the name, date of birth or occupation of the deceased seller.

• The exclusion of the legal warranty of quality for the entire immovable, if applicable.

e.g. “This sale is made without any legal warranty of quality, at the buyer's own risk. "

• The Declarations by the seller of the immovable (DS or DSD) form completed by the deceased person does not have to be amended and must be submitted to any potential buyer.

What if there was an accepted promise to purchase?

If the seller had accepted a Promise to Purchase when he was alive, the heirs could be bound by this promise. Get in touch with a legal advisor.