Reader,
Why a Buyer Might Ask for a Seller Contingency
Before You Decide This Is Overkill
Almost no one writes a Seller contingency into a residential offer. Read what follows and you may find yourself thinking it overcomplicates a deal that would probably close fine without it, or that none of it applies to how you do business. In a lot of circumstances, you’d be right. This isn’t an argument that every offer needs one. It’s a look at an alternative way to handle a specific set of deals, and all I’m asking is that you think about it. Love it, hate it, use it once and never again, that’s your call to make once you’ve seen how it works.
A buyer’s agent finds the right house. The buyer offers ten days of Due Diligence, a conventional loan, and Closing in thirty-five days. The seller accepts the next morning, and the agent assumes what every agent assumes: the seller can sign, and the paperwork behind the sale is in order.
The buyer starts Due Diligence right away, with a home inspection and a radon test. The appraisal is ordered. The lender starts working the loan, and the buyer gives notice on the apartment lease. Around day ten, the closing attorney sends the title commitment to the lender, and one of its requirements is court-issued paperwork showing who has authority to sell for the estate. The loan officer tells the buyer. The buyer calls their agent and asks what it means, and the agent has no idea. The agent asks the listing agent, who says court paperwork is in the works. The listing agent doesn’t know the timeline and assumed it would come through in time, since no one had told them otherwise. The listing agent calls the seller for an update. The seller has been asking the probate attorney for one and hasn’t heard back, and is starting to wonder whether the problem is with the probate, the attorney, or the court. In the meantime, Due Diligence has ended, the buyer has paid for every report, and no one can say whether Closing will happen on time.
Now run the same scenario with one addition to the offer: a Seller contingency. The seller’s side has to answer the authority question before the contract is signed, not after the title work is done. If the answer is “the petition is filed and we expect the paperwork in about three weeks,” the buyer writes that date into the contract and spends nothing until the paperwork arrives. If the answer is “we haven’t filed yet,” the buyer decides whether to wait or walk before they spend a single dime. Either way, the buyer learns at the offer stage what the first buyer learned from a title commitment, after the money was spent.
The Title Promise Covers Closing Day, Not the Weeks Before
The GAR Agreement promises Good and Marketable Title at Closing. That promise tells you what the deal looks like on Closing day. It says nothing about the thirty-five days before that, when the buyer is paying for the home inspection, radon test, appraisal, survey, and loan fees, and making decisions about a lease, a move, and the sale of their current home.
A Seller contingency fixes the order of operations. The seller side accounts for the property’s title status, and the buyer gets the opportunity to make a more informed decision before spending money. It also protects the seller: if something goes sideways in the court proceedings, the seller isn’t in default.
Requesting detailed information and negotiating for it to be written into the agreement is not an accusation that the seller isn’t performing or is signing a contract without the right to do so. An estate seller who is working with a probate attorney is doing everything right. The contingency puts the timeline on paper. The buyer holds off spending until the seller has what they need to sell, or at least knows they are spending money while seller-side problems are unresolved.
Reason One: It Gets the Seller’s Title Status on the Table Before the Title Work Does
Buyer’s agents don’t pull title, but the signs of a death or an estate are often visible before the offer. The listing says estate sale. The deed lists multiple owners while the listing agent talks about a single seller. The listing agent mentions a family member handling the sale, or says the owner passed away. The listing agent says the seller doesn’t live there anymore, but at the showing the buyer and their agent see a lot of the seller’s belongings still in the house. Those signs point to a death, and a contingency turns them into a question asked before the contract is signed, rather than an answer that arrives later with the title commitment.
Asking the question up front starts the conversation before the contract is signed. It puts the seller, the buyer’s side, and the closing attorney in the same discussion about where the seller is in the process, what still needs to be done, and how long that reasonably takes. The Contingency Requirement has to name a specific document, and the Contingency Date has to be a specific calendar date, so the seller’s side has to settle:
• Who has authority to sign for the seller, and what document proves it.
• Whether that document exists yet, or whether the petition hasn’t been filed.
• Whether the sale needs court permission or the signature of every heir.
• A date by which the seller will have it.
The closing attorney’s part of that conversation is title: what the title work will require in order to close. The seller’s probate attorney covers where the estate stands and how long each remaining step takes. Together they produce a date the buyer can plan around and both sides can be held to.
The buyer’s agent doesn’t draft this alone. The agent’s job is to spot the problem and bring it to the closing attorney, who says what the contingency needs to require. The closing attorney fills that in after checking with the listing side and, when there is one, the seller’s probate attorney. The same goes for other title problems the agent can spot, such as a divorce in the background or a lien mentioned in passing.
Reason Two: The Buyer’s Clock Should Start When the Seller’s Problem Ends
A standard Due Diligence Period starts running on the Binding Agreement Date whether or not the seller’s paperwork is ready. If it runs out before the seller’s problem is fixed, the buyer is deciding whether to terminate or keep going with money already committed to the deal, and no way to know whether the seller will be able to convey Good and Marketable Title when the Closing Date arrives.
The fix is to run the buyer’s deadlines from the moment the seller’s problem is resolved:
“All Buyer contingency deadlines under this Agreement, and the Due Diligence Period, shall run from the date Seller gives Notice to Buyer that the Contingency Requirement has been fulfilled.”
Under that language, Due Diligence still begins, but the deadline for it to end doesn’t start to run until the seller gives Notice that the Contingency Requirement has been fulfilled.
A longer Due Diligence Period doesn’t do the same job. It guesses at how long the seller’s process will take, and probate timelines don’t cooperate with guesses. Shifting the start date follows the delay, whether it runs two weeks or two months, so the buyer’s right to terminate is still open once the seller’s problem clears.
Where This Comes Up Most: Probate
Estate sales are the most common place a buyer needs this, because the person signing the contract often doesn’t have authority to sign a deed yet. In an estate sale, the person with authority is usually an executor named in the will or an administrator appointed by the court, and the court document that proves it is Letters Testamentary or Letters of Administration. Until those exist, the person listing the house is a family member with a good story and no signature that binds the estate.
Whether the sale also needs court permission or the signatures of the heirs depends on the will and the estate. A probate attorney answers that, not the agents.
Probate isn’t the only trigger. The same contingency handles a divorce that isn’t final or a spouse who won’t sign, a lien or judgment, an open bankruptcy, a question about someone’s competency to sign, and a boundary or encroachment dispute. Each one asks the same question: can this seller deliver the property, and when will we know?
How to Build It
Start with the GAR Special Stipulations library, not a blank page. SS 624, Court Permission to Sell, reads: “Seller’s obligations under this Agreement are contingent upon approval or order of the appropriate court having jurisdiction over the sale of the Property on or before [date]. In the event said court approval or order is not received by said date, Buyer may terminate this Agreement without penalty upon Notice to Seller.” It gives the buyer the option to terminate, which works for the buyer in most cases, since the buyer is the one who wants out if approval never arrives.
When the problem is something other than court permission, use the Universal Seller Contingency: “This Agreement is contingent upon Seller receiving [describe condition] (the ‘Contingency Requirement’) on or before [Seller Contingency Date].” Define the Contingency Requirement as the document the seller needs, such as Letters Testamentary or Letters of Administration, heir affidavits and quitclaim deeds, a release deed from a spouse, ex-spouse, or heir, or a bankruptcy court order. Add “sufficient to convey Good and Marketable Title” when that’s the concern.
A buyer-protective version has three parts:
1. The condition and the date. The specific document, and a Seller Contingency Date written as a calendar date. “Before Closing” doesn’t work: it leaves the buyer finding out whether the deal is happening at the eleventh hour, with everything already spent.
2. The consequence. A buyer termination right with a full Earnest Money refund if the document isn’t in hand by the date. That refund happens either way, but spelling it out in the contingency is what makes the buyer and their agent comfortable relying on it.
3. The deadline shift. The language above, so every buyer deadline and the Due Diligence Period run from Notice that the condition is fulfilled.
Assembled, it reads:
“This Agreement is contingent upon Seller receiving [Letters Testamentary / Letters of Administration], sufficient to convey Good and Marketable Title (the”Contingency Requirement”), on or before [Seller Contingency Date]. If the Contingency Requirement is not satisfied on or before the Seller Contingency Date, Buyer may terminate this Agreement by giving Notice to Seller, and Earnest Money shall be refunded to Buyer. All Buyer contingency deadlines under this Agreement, and the Due Diligence Period, shall run from the date Seller gives Notice to Buyer that the Contingency Requirement has been fulfilled.”
What the Seller Side May Say
The most common response is “we don’t need that, the paperwork is coming any day now.” If that’s true, the contingency costs the seller nothing, because it resolves the moment the paperwork arrives. A seller’s side that resists a contingency for a document they say is about to exist has told you something.
The Closing Attorney Is the Right Person to Ask
This is one of the few places where asking the closing attorney for guidance is exactly right, rather than something to route around. The closing attorney, together with the title underwriter, is the one who decides what’s sufficient to convey Good and Marketable Title. Asking that attorney what a Seller contingency needs to require, in a contract the same attorney will be asked to close, is a factual question about title requirements. It doesn’t tip into representing the buyer or the seller.
Where the estate stands and how long the remaining steps will take stays with the seller’s probate attorney. The closing attorney’s answer and the probate attorney’s answer are what let the contingency name a real document and a real date, instead of a guess.
FAQs
Do I need a Seller contingency every time the seller is an estate? No. If Letters have already been issued, the listing agent can hand you a copy, and that makes the contingency unnecessary. It gives the buyer’s side peace of mind that the closing attorney won’t find an issue with it later.
Why not just ask for a longer Due Diligence Period? A longer period guesses at the delay. Starting the clock at Notice of fulfillment follows the delay, whatever length it turns out to be.
Doesn’t the Good and Marketable Title promise already protect my buyer? On Closing day. The contingency protects the buyer’s money and timeline in the weeks before.
What if the seller refuses to give a date? That answer is information. A buyer who knows the seller can’t say when the problem resolves can decide whether to wait, offer on something else, or come back later.
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Stay Smart,
Cheryl Conner King
Founder & Instructor
REALsmart Real Estate School
Attorney | REALTOR® | CE Instructor
📍 Based in Georgia | Teaching Statewide
