Do I Need Probate to Sell a House After Death in BC?

Selling a home after a death is often the largest task for a family. The first question is usually whether you must wait for a court grant before you can list the property, sign a contract or transfer title.

The answer depends largely on how the home was owned. This article explains the main paths in British Columbia and the questions to settle before you speak to a real estate agent.

This article covers the law of British Columbia.

Start with how the home was owned

Check the title. If it says the owners hold as joint tenants, the surviving joint tenant takes the property through a transmission application to the Land Title and Survey Authority (LTSA). The online form is for owners on title who are individuals holding as joint tenants.

If the title does not say joint tenants, the owners are tenants in common, and the survivorship transmission does not apply. If any owner is a corporation, trustee or business partner, the LTSA says to contact a legal professional.

When survivorship applies

For joint tenants, the transmission needs original government-issued death documents, such as a death certificate. The LTSA lists a death certificate and a grant of probate as accepted documents.

The LTSA fees are a $82.52 registration fee per parcel and $10.30 for the Transparency Declaration. The application claims the Property Transfer Tax survivorship exemption, so no property transfer tax is paid. What the survivor can do with the property once title is transmitted depends on the situation, so it is worth confirming with a lawyer before you list the home.

When the home is part of the estate

A grant gives the personal representative exclusive authority to administer the estate under the grant's terms. A personal representative has the same authority over the estate that the deceased would have had if living, subject to any contrary intention in the will and to other enactments.

Buyers, lenders and land title staff want certainty about who can sign. A person who transfers or pays estate property to the personal representative before having notice that the grant was revoked is protected from liability, even if the grant was defective, which is why organizations rely on the grant.

For land in the deceased's sole name, how title moves to the personal representative depends on the situation, and organizations holding the deceased's assets can require a grant before they transfer them, each under its own policy. The exact documents and forms are worth confirming with the LTSA or a lawyer before you list the home.

Money and timing issues to plan for

• Probate fee: it is calculated on the gross value of the estate, which includes real property in BC, and real property is valued at market value at the date of death.
• Mortgages: secured debts are listed under the asset they charge in the Statement of Assets, Liabilities and Distribution.
• Small estates: no probate fee is payable if the estate does not exceed $25 000.
• Payment timing: the probate fee must be paid before the grant is issued, in addition to the court filing fees.
• Distribution: the personal representative must not distribute the estate within 210 days after the grant is issued, except by court order, or with the consent of all beneficiaries and all persons who could bring a variation claim.
• Tax: a legal representative who distributes assets without a Canada Revenue Agency clearance certificate is personally liable for unpaid amounts, up to the value of the assets distributed.

Selling the home and distributing the proceeds are different steps, so the 210-day rule matters most when it is time to pay beneficiaries.

What to do next

• Get a current title search and read how the owners hold title.
• Locate the will and the death certificate, and find out whether the named executor will act.
• Ask the buyer's lawyer or notary and the lender what they will need before you accept an offer.
• Check any mortgage or other debt registered against the home.
• Get advice before signing a sale contract if the estate has no grant yet, or if family members disagree about selling.

Frequently asked questions