Can an Executor Sell a House Before Probate in British Columbia?

The house is empty, the bills keep coming, and the market looks good. It is natural to ask whether you can list the property now and sort out probate later.

This article explains how authority over estate property works in British Columbia and why buyers and the land title office usually look for a grant. Every estate is different, so confirm your plan with a lawyer before signing a listing or contract.

This article covers the law of British Columbia.

Who has authority over the property

A deceased person's estate vests in the personal representative once that person takes office or is appointed. Until then, it vests in the court if there is no executor or no will. A personal representative has the same authority over the estate as the deceased would have had, subject to the will and to other laws.

A grant of probate or administration gives the personal representative exclusive authority to administer the estate. Whether a buyer, a bank or the land title office will accept your authority without a grant depends on the situation, so it is worth confirming with a lawyer.

Why land is different in practice

Land devolves to the personal representative in the same way as personal property, and the representative holds it as trustee for the beneficiaries. For land, the Land Title Act transmission rules apply.

A grant gives the personal representative exclusive authority to administer the estate, and for land the Land Title Act transmission rules apply. What a buyer or the land title office will require in your particular case depends on the facts. The documents and fees change over time, so confirm the current requirements with a lawyer before you commit to a closing date.

Different assets, different questions

If some co-executors renounce or do not join the probate application, the executors who obtained probate may dispose of the land and their acts are as valid as if all had acted.

If you need the grant, what the steps look like

Applications for probate or administration are made at any BC Supreme Court registry. Before applying, you must deliver a notice of proposed application (Form P1) to the persons the Supreme Court Civil Rules require, and then wait at least 21 days after delivering it before applying.

You must also submit an Application for Search of Wills Notice, even if you believe you already hold the original last will. The application must include two certificates showing the results of a wills notice search, and an affidavit of assets and liabilities, which is Form P10 for a domiciled estate.

Probate fees are $6 for every $1 000 or part of $1 000 of estate value over $25,000 up to $50,000, plus $14 for every $1 000 or part of $1 000 over $50,000. No probate fee is payable if the estate is worth $25,000 or less.

After a sale: the money is still the estate's

Sale proceeds are not yours to spend or hand out right away. A personal representative may publish a notice to creditors and other claimants in the Gazette, setting a deadline of at least 30 days.

As a rule, the estate must not be distributed within 210 days after the grant is issued unless the court orders otherwise. Where there is a will, the estate may be distributed earlier if all beneficiaries with an interest and everyone who could bring a wills-variation claim consent. Where there is no will, all intestate successors entitled to a share must consent. If some beneficiaries cannot be located, early distribution can go ahead if the representative sets aside their gifts and enough to cover variation claims, and the representative is liable for any loss unless they show all the required amounts were set aside.

Before distributing property you control, you must also obtain a clearance certificate from the Minister of National Revenue. Distributing without one can make you personally liable for unpaid tax, up to the value of the property distributed.

What to do next

• Locate the original will and list all assets and debts, since an applicant for a grant must make a diligent search and inquiry for the deceased's property and liabilities.
• Confirm who is named as executor and whether co-executors must all sign.
• Hold off on signing a listing or sale contract until a lawyer has reviewed your timeline.
• Start the wills notice search and the Form P1 notice so the 21-day wait begins.
• Keep the home insured, secured and maintained while you wait.

Frequently asked questions