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Tuesday, October 15, 2019

Selling a house from an estate before probate is granted

The post below originally appeared on this blog in 2010. It has been updated and revised.

Because it can take weeks to receive a Grant of Probate from the courts, and because executors are usually under pressure from beneficiaries to wrap up the estate quickly, executors may be in a hurry to sell a house or other real estate in the deceased's estate. This is particularly true if the market is in the seller's favour at the time. Executors don't always want to wait until they've received the paperwork from the court.

Unfortunately, the executor does have to wait until the court issues a an order of Probate. It's not just a technicality or insignificant piece of paper. Think about what it actually does. It allows someone else to sell another 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.

The house can be listed for sale while the probate documents are being processed at the court. The executor who is selling the house 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.

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