Unfortunately, the executor does have to wait for the actual court order. It's not just a technicality or insignificant piece of paper. Think about what it actually does. It allows someone else to sell a person's house and look after the money. If a Probate order wasn't needed, then what would stop pretty much anyone from trying to sell that house and keep the money? The probate order is proof that the person selling the house, who after all is not the owner of it, has the legal right to sell it and accept the money.
An executor who goes ahead without the probate and tries to sell a property will find that the Land Titles Office or registry will not allow this to happen. They must have a court certified copy of the probate before they will register a new owner.
This doesn't mean that the house can't be listed for sale while the probate documents are being processed at the court. The executor who is selling the house just needs to make sure that he or she is clear on the sales agreement that the sale is subject to a probate order being granted.
Beneficiaries who are pressuring for the sale of the house need to realize that once the executor has filed the documents and is waiting for the probate order to be issued, there is little the executor can do to speed up the process.
how long do you have to sell property or a house in the estate? Is there anyway to keep property if there is no will but all beneficiers are in agreence with the executor keeping the property?
ReplyDeleteIf, for some reason, the beneficiaries agree that the property can be kept in the name of the estate for a while rather than being transferred, then yes the executor can do this. However, make sure you have covered off the logistics of keeping this property in trust. For example, where is the money coming from for repairs and property tax? Who is paying for the insurance? Are the beneficiaries prepared to deal with the capital gains tax that will arise if the property increases in value while held by the estate? And what happens if the bottom falls out of the housing market, or the house burns down? Who do you suppose will be left holding the bag on that one? Remember that the executor will have to file a tax return for the estate each year that it still holds property, which will cost money. And of course, sooner or later one of the beneficiaries is going to get tired of the situation and declare that he/she was never in favour of the arrangement in the first place. But other than that... knock yourself out.
DeleteLynne
one more question please.. is there any set amount of time i have to settle the estate as there is no disagreement between the beneficeraries. its almost been 3 years and the house is the only thing in the estate no.money was left behind. id really appriciate your help again.
DeleteThat's actually the same question... but perhaps I wasn't clear when I answered. There is no set limit by which you must sell the property, as long as the beneficiaries are ok with it, and you're prepared to deal with the things I mentioned above - property tax, maintenance, insurance, capital gains tax, annual tax returns etc.
DeleteLynne
thank you that was my biggest concern should i have the house title put into my name asap or better to leave it. it still remains in my mothers name
DeleteThe deed for my father's house was in his name and my deceased mother's name. He recently passed away and left the house to me and my two siblings. The will is going to be probated. Do I understand correctly that the deed cannot be transferred to our names until the probate process is complete? And do I understand correctly from your post, that the house can be listed, but not sold until the probate process is complete? My sister wants to sell the property as soon as possible and, after speaking to a lawyer, she thinks that the issuance of the deed to us (the beneficiaries), the probate process, and the sale of the house can be done simultaneously. Is this correct?
ReplyDeleteThanks
Yes, you understand correctly. One thing though - if the house still has your mother's name on it, you'll have to deal with that too. This might mean probating her will as well.
DeleteLynne
Thank you for clarifying that. So, can, as my sister believes, the issuance of the deed, the sale of the house, and the probate process be done simultaneously?
DeleteAlso, I don't think my mother had a will. If she did, it all went to my father. That would be an added complication, wouldn't it? If she didn't have a will?
I know you've been asked this before, but can you give a ballpark time frame for the probate process? e.g. at least 6 months?
Thanks again for your help.
Lynne, approximately how long does it take to get a grant of probate? It is my understanding that the house can be put up for sale before the grant is issued and then when it comes in, the sale can happen after that. I am in a situation where my parents have both passed away and my mother's will has to be sent to probate. Three siblings have been named beneficiaries. My brother does not wish to retain the family home and neither do I. My sister on the other hand won't decide. I would like it if she would either pay us out of our portion or decide to put it up for sale and the three of us split the residual. All of course in the proper time frames. Grant of probate and CRA clearance all completed. How long is reasonable for her to hold things up?
ReplyDeleteOnce the application for probate has been filed at the court, you can expect to wait about three weeks. Sometimes there's a backlog, and occasionally I've had to wait up to six weeks.
DeleteLynne
Hi Lynne, Is it possible to buy a house (estate sale) where probate has not been received (court order). My Lawyer told me that we can still get the possession but will not release the money until probate is done and at that time will pay the extra interest to vendor.
ReplyDeleteYes, this is possible. In fact it's not unusual. The purchase agreement must specifically state that the sale is subject to the probate application going through. You would pay extra interest because you would be using the house before you paid for it. Keep in mind that if there is a delay in the probate for any reason, you could end up paying quite a bit of interest.
DeleteLynne
Hello Lynne, I inherited a property. Can I put the Estate for sale before taxes are payed. The taxes are about $8000.00 which I cannot afford until he house is sold. So if I file the papers with court, will I be able to sell the house and then use some of the funds to pay the $8000.00 so that I can get the certificate? Is the certificate the same as the Probate Order?
ReplyDeleteThanks
Merle
Hi. Yes, you can sell the house and use the proceeds to pay the tax. This is not at all unusual. If you are the executor (and it sounds as if you are) and you don't pay the tax from the sale proceeds, you will then owe that $8,000 personally.
DeleteThe certificate is a Tax Clearance Certificate which is issued by Canada Revenue Agency when all tax returns have been filed and all tax has been paid. This is not the same as the probate order, which comes from the courts. You'll need both.
Lynne
Hi Lynn,
ReplyDeleteI have probate granted in another country, but my mother had a house here in Ontario. I have already paid inheritance tax on the house and so I want to know if I can sell it without getting probate here. I am the sole executor and sole beneficiary. I have read that I can sign something for the Land Registry that indemnifies against future claims?
Thanks!
You will need probate in Ontario. When the will has already been sent to another court, as your mother's has, the application in Ontario is actually called "re-sealing" the order of probate.
DeleteI have never heard of anything at the land registry that indemnifies against future claims as you mention. It doesn't make sense to me that there would be such a thing, either. The land registry's job is to keep track of the legal ownership of property, and they can't allow you to sell someone else's property without legal authority.
Lynne
Hi Lynn,
ReplyDeleteMy mother passed away 3 years ago and did not have a will. My sister and I lived with her since birth and were named the beneficiaries of her assets(RRSP's,pension etc). Now I am selling her house, which my mother and I jointly owned. Now the lawyer says I need to do a probate for this, is this correct?
Thanks
Hi. I suspect, based on what you've told me, that you and your mother were not actually joint owners of the property. You can have two or more people on a title and not be joint owners.
DeleteI assume that the lawyer you spoke with did an updated title search on the house to check the status of the title. If the lawyer says you need probate, it must be because you and your mother were actually tenants in common on the title, and not joint owners.
Most people think that the fact there is more than one name on the title must mean the owners are joint, which carries with it a right of survivorship, but that can't be the case for you. The choice of joint ownership or tenancy in common would have been made at the time the house was purchased.
If you are not satisfied with the lawyer's advice that probate is needed, take the updated title search to another lawyer for a second opinion.
Lynne
Hello Lynn,
ReplyDeleteWhen the will is finally probated, what should go on the tile of the home? Is it the executors names or what exactly should it be changed to in order to sell it as executors?
looking for advice.
thank you.
Hi. Yes, it goes into the executors' names, like this: "Joe Smith and Frank Smith, Executors of the estate of Susan Smith". In other words, it shows that the title is only theirs on behalf of the estate.
DeleteLynne
My grandparents are in a nursing home..can their house be sold before their death by one of their children? was the will legally supposed to be read before death?
ReplyDeleteHello. I answered this question in a new blog post dated January 26, 2014. It was a long answer :)
DeleteHi Lynne. Excellent Blog. The person who applied for the grant of probate, had put the house on the market and is stating on all the real estate paperwork as power of attorney,(owner is passed away). Right after the will was put into probate there became a challenge against the Will as not being valid due to undue influence and due to the person being incapacitated at the time of the new will being drawn up. So my first question concerning that bit, is this person still name as the executor or is the grant of probate on hold until it is determined if the will is valid or not? Next, upon Land title checks by the lawyer the owners name is still on the property and not this person who applied for the grant of probate. Can this house even be sold without this being transferred and just using the excuse that he is the Power of attorney for a person that is passed? This person also has not filed with Land titles that they were the power of attorney. One of the reason this person had the will changed for there own financial gain, they have not opened up an estate account yet and they have been renting out the house for large sums of money and taking the funds to cover his expenses of the estate, like the filing for the grant of probate, plus other expense that he just got ordered to provide accounting for but it was on a hand written piece of paper that had black marks all over, it has no receipts and just states this is what he collected for rent. It also states the he is charging a 3% compound interest monthly and this is why the rent is not covering the expenses of the estate. This has been going on since 2011, the residual beneficiary has to keep going to court just to get any information, including he had to go to court to get the will handed to him. This person claims because they filed they can do what they want, they supposedly has sold the house with no transfer of title and sold under the power of attorney. The beneficiary is getting fed up with this person switching back and forth with the paperwork depending on what asset he is getting rid of. The beneficiary is also upset that the person is one minute power of attorney and next minute executor at whenever he feels it appropriate. No one has seen the Power of attorney paperwork due to when it fits this person convenience he states that she was never incapacitated yet she was when she was alive(deemed by two doctors). Does anyone check out if a will is being contested when a house is being sold, like real estate, lawyers, land titles etc? I read above that the executor has to have it in there name before they sell, so how can real estate paperwork be signed as power of attorney when she has passed since November of 2011? I thought this is fraud to represent something you are not without proving it? I also did not think this person could also move a family member into the house to keep care of it and allow them to live in one of the rooms rent free until the house sells to keep an eye on the tenants. This person is taking 20% of the rent as well as living rent free to help watch the tenants. It is the executor(power of attorney)'s son that is doing this for his father. All of this is happening in Alberta. This is just a small portion on what is going on with this estate. Please answer for me, I could not find any thing in your blog addressing these issues.
DeleteHi Lynne,
ReplyDeleteMy father had an Agreement for Sale in place for his house and land. He died in December. The buyers have sent a letter saying they intend to go through with the Agreement and that we have 90 days to vacate. We are using a program called Executor Ease rather than a lawyer to file for probate. Today she said it will take 6 months for the probate to come through and that we can't sell the house until it does. The buyers want to put in a crop this spring. Do we have to wait until the probate goes through before selling, even though my dad had the Agreement for Sale?
Six months for a probate to come through?? That is just ridiculous. It should be more like three weeks once the documents get to the courts. I'm not familiar with the program you're using, but so far I'm not impressed.
DeleteYou can honour the agreement for sale, though the title cannot transfer until the probate has been granted.
If I were you, I'd consult a lawyer who does a lot of real estate. He or she can set it up with trust conditions to protect you, while allowing the buyers access to plant the crop. The purpose of the trust conditions is to allow everyone to get out of the agreement with a minimum of damage if for some reason the probate cannot be obtained.
Lynne
Question? There are three beneficiaries to a property where one of them is intending on purchasing the home and has put in a formal offer. One of the beneficiaries has responded who is also the Executor of the Will but the other has not and the offer has now expired. The Beneficiary who wants to purchase the house still would like to move ahead with the offer and the other (Executor) is on board and would like to come to an agreement as well. How long do two of us have to wait for the third to respond or not. Is there a section in Estate Law that allows us to move ahead without the third who is not complying with timelines. The house is not being sold to pay any bills and needs the written ok of all residuary beneficiaries. What options do two of us have to move forward with the sale of this house?
ReplyDeleteGenerally, when people simply don't respond (as opposed to stating an objection, or making a counter-offer), they bring everything to a halt. This just isn't fair to anyone. If the third person cannot be persuaded to participate in the estate, your option is to ask a court to allow the sale of the property without that person's involvement.
DeleteLynne
Do an Executor has a legal rights to sell a property or reach an agreement to sell a landed property under a Will without a grant of probate being obtained from the court?
ReplyDeleteThis is exactly the question I answered in my post.
DeleteLynne
Hi Lynne, please I will like you to explain more about agreement to sale base on property under residuary estate. I am a law student here in West Africa. I will like to follow with your online lectures
DeleteHi Lynn.
DeleteMy Dad bought my grandfather’s house after he passed away and the siblings split the sale proceeds. Trouble is they did it without paying off the final probate tax. I’m pretty sure this is illegal. Any thoughts on this?
In order for your grandfather's house to be sold after he passed away, someone must have signed the title on behalf of your grandfather. Legally, this must have been an executor or a court-appointed administrator. That person is responsible for paying the probate tax before splitting the proceeds. If that person is not able to persuade the beneficiaries to return enough money to pay off the probate tax, then he or she should expect to be pursued personally by the government for that amount.
DeleteFunny how people always think the rules don't apply to them.
Lynne
Thank you for your reply Lynne. Most kind.
DeleteLong story short - My Grandfather and Dad had a joint bank account, so the account did not form part of my grandfather’s estate. When Grandfather passed away, of course the account became my Dads and his alone. They were advised by the bank that this account did not form part of Grandfather’s estate and it was up to my Dad to change it into an estate account if they wanted to. They decided not to and my Dad held on to the account and offered to pay any bills as necessary from it.
Unfortunately, my Dad suddenly passed away last year and because of that, the account formed part of his estate. My brother and I (as co-executors) did not know that it was a joint account and that it was to become Dad’s. Literally days after he passed the siblings were trying to get us to transfer the account over to them (keeping in mind we had no idea it was a joint account until the bank told us). We thought they were getting us to transfer over permissions to act on an account that still belonged to my grandfather.
We were told rightfully by our lawyer and the bank that we cannot transfer the account because it is our Dad’s estate property. The siblings then launched a blistering attack against us claiming that we were morally wrong, and are wrong to claim money that belonged to our grandfather ( we since learned that his intention was to leave it to our Dad all along according to the bank). They now claim they cannot pay the final probate tax at all because of “what we have done”…. It turns out they divided the house sale proceeds and left the estate open!
I’m sharing this with your readers in hopes that someone else will not be taken for a ride by family. I encourage all to get qualified legal help with all probate matters. Do not attempt to do it all yourself.
recently my aunt died leaving only a holographic will naming her brother (my father and only closest surviving relative) as executor and beneficiary.
ReplyDeletewe have started the probate process but as my father is also ill i have taken care of alot of the leg work including cleaning out and listing the home.
my question is can we list the house publishing a probate clause on condition of sales while we wait for probate
Yes, your father can do that.
DeleteLynne
Hi Lynn,
ReplyDeleteIf I buy property (condo) that is under probate, when I can obtain mortgage?
Also if I move in do I need to pay for maintenance fees plus property taxes plus interest on deposit (or sale price?).
Thanks
You have to wait until a) the probate is granted by the court, and b) the executor then transfers the property out of the name of the deceased and into the name of the estate.
DeleteThe question about payment of those fees is best asked of someone who practices real estate law, which I haven't done in close to 30 years.
Lynne