FACTS: A husband and wife owned the property as tenants in common.  The husband died and the death certificate was recorded.   

ISSUE: Who is the rightful owner of the property entitled to sign the listing agreement?

ANSWER: See Discussion.

DISCUSSION:         

The listing agreement is a contract between the broker and the seller and must be signed by the actual owner(s) of the property.  Here, the property was owned by the husband and wife as tenants in common.  Holding title as tenants in common, does not have a survivorship feature.  In other words, in the event that one owner passes away, the deceased owner’s interest does not automatically convert to the survivor’s interest.  Rather, the interest becomes a part of the deceased owner’s estate and must generally be dealt with through probate. 

Here, the wife is an owner and can sign the listing agreement for her portion of the property.  The husband’s portion of the property must be probated.  Generally, the personal representative of a probate estate is the person with signing authority for the probate estate.  ARS § 14-3711.

Note: Title companies are never obligated to issue title insurance even under lawful circumstances.  Best practice is to contact a title company prior to listing the property for sale if there are any doubts regarding who is legally authorized to sign on behalf of a limited liability company, corporation, trust or probate estate.