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Friday, February 24, 2017

I'm the only child and I'm the executor. Do I need probate to sell the house?

Not all wills need to be probated, but sometimes it's not clear whether a will needs to go through that process in any given situation. A reader recently wrote to me to ask whether he needs probate in his specific case. Some of you will certainly recognize his situation because he is an only child and he is named as executor. Those two facts certainly make things easier for him, not least of all because there are fewer beneficiaries to please and therefore there is less chance of anyone objecting to his administration of the estate. Read on to see his question and my comments:

"I am an only child and both my parents have passed away. The title to the family residence is in my mom's name. I had Power of Attorney and I'm also the executor of my mom's will. I now have an offer on my mother's home. As executor don't I have the right to sell this home and pay all expenses associated with the property and the proceeds to her estate? And do I have to probate the will since I'm the only child plus executor?"

Yes, you do have the right as executor to sell the house, pay the bills, and deposit the net proceeds into the estate. That's part of your job as executor, but within every general description such as "sell the house", there are specific steps that need to be taken. Some have requirements over and above being named executor.

Being the only child is not a relevant factor in whether or not you need to apply for probate. In some cases it is relevant because an executor can choose to get probate if the will is shaky or someone is threatening to sue and the executor wants to start the limitation time running. However, none of that would seem to apply in your case.

Without getting probate, you can list the property for sale. You can take care of any cleaning, repairs, or renovations that need to be done in order to attract a good selling price. You can (and should) keep insurance on the property and pay the property taxes. You can pay expenses that are necessary such as heat. You can even sign a sale agreement with a buyer, as long as the agreement is clear on the fact that it's subject to you getting probate from the court.

What  you cannot do without probate is actually change the title on the property. You can't register the buyer's title at the land titles registry. In other words, you can't finish the deal.

You do have to apply for probate in order to change the name on the title to real estate.

Having the will alone (i.e. without an order of probate) is not enough. There could be other wills out there that were supposedly signed by your mother. There could be something wrong with this will such as improper signing or contradictory language, especially if it's a home-made will. There could be all kinds of skullduggery going on that the land titles people would have no way to know about. The land titles people rely on the courts to ensure that all of those possibilities are dealt with. This means you have to get an order for probate to prove to the land titles registry that it's okay to go ahead with the change of title.

2 comments:

  1. My father passed away this week. In his will he left everything to my mother. 2 years ago I had made sure that all of their bank and investment accounts were joint and my mother was named as beneficiary of his RRIF. The only question now is their home. My father bought it before my parents were married, but it is the only home they have ever owned. My mother does not know if the title was ever changed to include her. Because this is the matrimonial home (and my mother will continue to live in it), is it automatically considered to be jointly owned? Does the will need to go through probate if this is the only asset not clearly jointly owned or with a designated beneficiary? We are in Ontario. Thank you.

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    1. In Ontario, the fact that it is a matrimonial home does not automatically mean that the surviving spouse owns the home. Fortunately your father made a will leaving the house to your mother. Yes the executor will have to put the will through probate process.

      Lynne

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