FACTS: During the escrow period, the listing agent passed away.

ISSUE: At close of escrow, can the broker pay the deceased agent’s commission to the agent’s spouse?

ANSWER: See Discussion

DISCUSSION:         

A.R.S. §14-3971(A) states:

At any time after the death of a decedent, any employer owing … compensation for personal services of the decedent shall pay to the surviving spouse of the decedent the amount owing, not in excess of $5,000, on being presented an affidavit made by or on behalf of the spouse stating that the affiant is the surviving spouse of the decedent, or is authorized to act on behalf of the spouse, and that no application or petition for the appointment of a personal representative is pending or has been granted in this state or, if granted, the personal representative has been discharged or more than one year has elapsed since a closing statement has been filed.

Here, if the commission due is less than $5,000 and there is a surviving spouse, the listing broker may pay the surviving spouse the commission if the spouse provides the appropriate documentation under A.R.S. §14-3971(A).

However, if there is a personal representative for the estate of the agent, that individual should show his or her letter of appointment to the broker, and the broker may pay the commission to the personal representative of the agent’s estate. Otherwise, the surviving spouse, upon presentation of the affidavit, may collect the commission up to $5,000.