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Thursday, June 10, 2010

Two steps to transferring real estate from an estate


I'm often asked about the mechanics of certain transactions under an estate. Probably real estate gets more questions than any other type of asset. In this post I want to describe the two basic steps that are involved in taking a piece of real property from an estate and selling it or transferring it.

Let's say that when Amelia dies she owns a house. Nobody else's name is on the title. Her executor, Sam, reads the Will and finds that he needs to transfer the house to Amelia's nephew. The first step Sam takes to deal with the house is called transmission. The property is being transmitted from Amelia to Sam as executor (NOT Sam personally). The Grant of Probate needs to be obtained first to take this step.

Sam completes a document called a Declaration of Transmission and files it at the Land Titles Office with some supporting items. Once the Land Titles Office processes it, they give Sam a new title, which shows that the house no longer belongs to Amelia, it belongs to the estate. The title will actually show as "Sam, executor for estate of Amelia". While the property is in the name of the estate, the executor is responsible for keeping it insured and secure, and paying the property taxes.

Now Sam can take the second step, which is called transfer. Sam will prepare a document called a Transfer of Land, again with supporting information and fees, and file that at the Land Titles Office. Once this is processed, the title will be in the name of Amelia's nephew and Sam will no longer have any control over the property.

The transfer could, in other situations, involve selling the property to someone outside of the estate. In this case, there is still a Transfer of Land used.

11 comments:

  1. In other situations, The transfer could involve selling the property to someone who belongs outside of the estate. In that sort of a case, there is still a Transfer of Land used.

    Improve Canada

    ReplyDelete
  2. A very good and informative article indeed. It helps me a lot to enhance my knowledge. keep sharing.
    Jeffrey T. Angley, P.C.

    ReplyDelete
  3. Can you transfer the house to a family member without probate?

    ReplyDelete
    Replies
    1. If the family member was a joint owner of the house, yes.

      Lynne

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    2. Further to this question - my father passed in November without a will and as the only child/next of kin I'm to inherit the house. I just received confirmation that the mortgage has been paid by life insurance, what is the process to transfer it to my name? Would it be as simple as hiring a lawyer to transfer the title and bringing them a copy of the death certificate? Or would I have to go through some sort of complicated legal process? The house is worth about 60K, and is the entirety of the estate aside from personal belongings and a vehicle, so I don't think there's any red tape.. I've already negotiated and settled all other secured and unsecured debts personally and easily transferred the vehicle registration with nothing but a signed affidavit.
      Looking forward to your response, my internet searching has been fruitless!

      Delete
    3. Hi Confused Person,
      You will have to get Letters of Administration to get legal authority to transfer the house. You can't just sell or transfer another person's house, even when they've passed away and you're their only child, so that step is necessary.

      This doesn't have to be a complicated legal process at all. Since you're the only child, you don't need any involvement by other people, so it should be simple and straightforward. It isn't particularly expensive in most provinces, either.

      So there are two steps for you. One, get Letters of Administration. Two, get the title transferred from the estate to you.

      Lynne

      Delete
    4. Less confused personMay 1, 2018 at 7:44 AM

      Thanks, appreciate the quick response! I've read quite a few of your articles/comment responses here over these months and it's been a great help.

      Delete
  4. British Columbia
    My sister is the joint tenant on our mothers house. She is a non-resident living in Japan. I am the executor. Do I have the title transferred to her name or is she required to do so herself? I have been told I have no authority to transfer in this situation. Ownership will also be challenged so am I able to delay transfer until a determination is made.?

    Thank you.

    ReplyDelete
    Replies
    1. As an executor, you do not have authority to transfer a jointly-owned asset. This is because the ownership passes to your sister without going through the estate.

      Lynne

      Delete
  5. Is it possible to get a land title transferred into my name when, I am the legal rep. Only child but not all deot of the estate have been resolved?

    ReplyDelete
    Replies
    1. Is it possible? Sure. But as you say, the debts of the estate haven't been paid and if they remain unpaid, you as the executor will become personally liable for transferring a property that might have been sold to pay those debts. So yes, it's possible but it's only a good idea if there are other assets of the estate to pay for the debts.

      Lynne

      Delete

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