Estate Trustee Certificate Needed to Sell a Deceased Person's House

As an executor, one of your first practical questions is whether you can sell or transfer the deceased's house without going through probate. Buyers, lawyers and the land registry will all want to know that you have legal authority to deal with the property.

This article explains the general rule in Ontario, which certificate applies, what the land registry asks for on an estate transfer, and the one narrow situation where the certificate can be waived. Your circumstances may differ, so a lawyer should confirm the steps.

The general rule: get the certificate first

Probate is normally needed when the deceased owned real property. A Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone signs an agreement of purchase and sale of the deceased's real property.

The reason is practical. The Certificate of Appointment gives the estate trustee authority to manage the estate assets and pay the estate debts. Without it, a buyer has little assurance that the person signing can actually sell the house.

Being named as executor in a will is a starting point, but it is the certificate that most buyers and registries look for.

Which certificate applies

Estate value depends on what the estate owns, so a lawyer can help work out which category applies and how to value the house.

For estate certificate applications on or after January 1, 2020, estate administration tax is $15 per $1,000 (or part thereof) of estate value above $50,000. Estates of $50,000 or less owe no tax but still need an Estate Information Return. The tax is paid as a deposit when applying for the certificate. An Estate Information Return must be filed within 180 calendar days of receiving a certificate.

What the land registry asks for

Only authorized Teraview account holders and their registered users can create and submit documents in Ontario's Electronic Land Registration System. Authorized groups include lawyers, conveyancers, surveyors, real estate agents, mortgage brokers and financial institutions. Registrations are entered by authorized users, then reviewed and certified by ServiceOntario. So the registration itself will go through a lawyer or other authorized user.

On a Land Titles transfer by an estate trustee, a solicitor must sign statements covering authority to transfer, any court appointment (a certificate with or without a will), Family Law Act spousal rights, and consents.

• Authority to transfer the property.
• Details of the court appointment, if there is a certificate.
• Family Law Act spousal rights, including whether a spouse has any claim.
• Any required consents.

The narrow waiver: not a general exemption

Some people hear that estates under $50,000 do not need a certificate. That is not a general rule. Where no certificate was obtained, the land registry bulletin allows a solicitor's statement that the estate is not more than $50,000, but a covenant to indemnify the Land Titles Assurance Fund (Form 54) is required.

There is also a narrow waiver in the Land Titles system. Registrars may waive the certificate only for a property converted from Registry to Land Titles where the transaction is the first dealing after conversion. It must be supported by an affidavit stating the estate value and that a certificate was not applied for, and it always comes with a covenant to indemnify the Land Titles Assurance Fund.

These are technical registry practices, and the guidance behind them is older. They do not change the general rule that a certificate should be obtained before anyone signs an agreement of purchase and sale. Do not count on either one without a lawyer's confirmation.

What to do next

• Locate the will and the death certificate, and confirm who is named as estate trustee.
• Get a title search to confirm how the house was owned. If it was held jointly with a right of survivorship, a different process may apply.
• Estimate the value of the estate, including the house, to decide between a Small Estate Certificate and a Certificate of Appointment.
• Plan for the estate administration tax deposit when you apply.
• Hold off on signing an agreement of purchase and sale until the certificate is in place.
• Diarize the Estate Information Return deadline once you receive the certificate.

A lawyer can prepare the application, confirm which route applies and handle the registration of the transfer.

Frequently asked questions