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