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Probate Disclosure Requirements

Dear Phyllis,
My husband passed, but he didn’t have a living trust. He purchased the home before we were married, and I was never put on the title. Therefore, the home had to go to the probate court, which took forever. When my brother became terminal, I moved into his Glendale home and spent most of my time there.
Apparently, my real estate agent gave me limited disclosures because the home was probated. Two months after the buyer moved in, they contacted my agent and told them I failed to disclose a recent roof leak and repair. My agent knew about the leak because he was the one who gave me the name of the roofer.

My agent told me to contact a real estate attorney. My attorney told me that because I was recently living in the home, I should have completed all of the disclosures, including the Transfer Disclosure and Seller Property Questionnaire. He believes my agent was at fault and wants to write a demand letter for him to pay for the roof repairs demanded by the buyer. The Realtor is a family friend; I don’t want to do that. What are the probate disclosure requirements? Do you agree with my attorney?

Dear CLM,
I am sorry you find yourself in this situation. As a real estate agent and not an attorney, I can only speak from my experience. If you had not lived in the home for some time, I don’t think you would be required to complete the Transfer Disclosure or Property Questionnaire. However, you had firsthand knowledge of the home, so those forms should have been completed.

Because this was a probate sale, the form you completed was the Exempt Seller Disclosure, which just asks 11 questions. However, the last question reads, “Any other material facts or defects affecting the property of material documents in Seller’s possession affecting the property not otherwise disclosed to buyer.”

In my opinion, this would be a “material fact.” Typically, I use the Receipt for Reports and attach all recent invoices and estimates as a disclosure to the buyer. Since your agent knew about the roof repair, he could have either had you add it as a material fact on the Exempt Seller Disclosure, used the Receipt for Reports, or had you completed the Seller’s Property Questionnaire. Had either of these methods been used, this would have likely eliminated the situation you find yourself in.

Likely, your Realtor used a Transaction Coordinator (T.C.). The T.C. knew this was a probate sale but was likely unaware that you had recently lived in the home. This is why I prefer handling my paperwork and not using a transaction coordinator. I can’t advise you on how to proceed with your Realtor, but I hope my answer helped clarify things for you.