Legal Question in Real Estate Law in Massachusetts

It is a conflict of interest. However, as long as the commission paid to the brokerage firm is as good a rate as any other broker would charge, there is no basis to seek a refund to the estate of the commission. There is an additional issue of whether the brokerage firm is knowledgeable of the area. Your sister owes a fiduciary duty to get the most money she reasonably can for the home. To do that she should use an experienced real estate broker familiar with the area who can properly price the property. She is putting herself at risk if she uses a brokerage firm from outside the area or a newly licensed real estate agent with no prior real estate interest.

You can file a Motion in Probate Court asking she be prohibited from using her husband, but I am not sure it will be worth the cost. You could send a formal written objection to her on the basis not only is it a conflict of interest but the lack of experience puts the estate at a disadvantage.

Good Luck

I agree with Attorney Roth that it creates the appearance of a conflict of interest on the part of the personal representative, your sister. As he mentioned, your sister's task is to obtain the highest possible sales price on behalf of the beneficiaries of the estate. To that end, it would seem that her interest and the brokerage firm have a common interest in obtaining the highest possible sales price.

Perhaps a deal can be worked out that benefits both the broker and the estate, for example, if the broker would agree to take 50% of the commission that would ordinarily be customary. In this way, the broker makes money and the estate saves money it would otherwise have had to pay. This assumes that the broker is talented and knowledgeable.

The commission would not become part of the estate.