How Does an Executor Sell or Transfer a Deceased Person's Land in Saskatchewan?

A house, a quarter section or a lot in the deceased's name alone cannot simply be listed and sold by the family. As executor or administrator, you have to show the land registry that you have legal authority, and that takes some paperwork in a particular order.

This article walks through that order in Saskatchewan: getting Letters, valuing the land, the Certificate of No Infants Interested, the consents you may need, and what to settle before sale money is paid out. Jointly owned land is a different situation and is not covered here.

This article covers the law of Saskatchewan.

Why land always needs Letters first

Many assets can be dealt with without going to court, because the bank or other institution decides whether it needs Letters. Land is different. The Court of King's Bench says the one asset that absolutely requires probate is an interest in land, including mineral rights, registered solely in the deceased's name.

Letters Probate or Letters of Administration with Will Annexed are required for any land transaction with ISC if the estate includes real estate. Small-estate relief does not change this. Letters may not be needed for an estate of $25,000 or less with no real property, but real estate always requires Letters for ISC land transactions.

Which grant you apply for depends on the situation. Letters Probate applies where the will names an executor. Letters of Administration applies where there is no will. Letters of Administration with Will Annexed applies where there is a will but no executor is named, or the executor cannot or will not act.

Transferring the land: the order of steps

Once you hold Letters, the land must first be transferred at ISC into the personal representative's name. If the estate is not insolvent, it can then be transferred to one or more beneficiaries or to a purchaser.

Land held solely in the deceased's name is listed as a Part I asset on the Statement of Property (Form 16-14). To fill in that form you need a value for the land.

• Get a report from a land appraiser or agrologist.
• Or get a market evaluation from a real estate agent.
• Or use the municipal property assessment.

Which option suits you depends on the property. Farmland or unusual property may call for a different approach than a town house, so ask a lawyer or accountant if you are unsure.

The Certificate of No Infants Interested

A Certificate of No Infants Interested (Form 16-7) is one of the documents required to sell real property when no beneficiary is under 18. If the estate includes real property and no named beneficiary is under 18 or a dependent adult, you request it from the Court of King's Bench for $25, and it must be requested at the time you file the application for the grant.

If you did not request it at filing, there is another route. You can obtain the certificate from the Office of the Public Guardian and Trustee (PGT) using a notarized copy of the Letters and an affidavit that no minors or dependent adults are interested. One provincial page gives the PGT fee as $30, so confirm the current amount before you pay.

Asking for it at filing is usually simpler, because it saves a second trip later.

When a beneficiary is a minor

If a beneficiary is under 18, the Certificate of No Infants cannot be used, and a land sale needs more. ISC requires consent from the legal guardian, an acknowledgement from each minor aged 14 or older, and consent from Children's Services at the PGT.

You also need to give notice to the PGT (Form 16-12, two copies) if any beneficiary is under 18 or a dependent adult. Build this into your timeline, since extra consents take time to collect.

Beneficiary consent, leases and debts

Selling estate land requires written consent from all beneficiaries. The exception is where debts exceed the available funds and the property may have to be sold to pay them. Consent is then not required, although it is recommended.

Leasing is also limited. Estate land can be leased for no more than one year unless all interested beneficiaries consent.

A sale does not mean the money can go straight to beneficiaries. Consider these points first:

• Debts of the deceased are paid from the estate and must be paid before any gifts in the will go to beneficiaries.
• If you distribute before getting a CRA clearance certificate and tax is still owing, you can be held personally liable up to the value of the assets distributed.
• Distribution may be delayed six months after Letters are obtained where a dependant may claim under The Dependants' Relief Act, 1996 or a spouse may apply for division of family property.
• Final distribution cannot occur until the CRA clearance certificate is received.

What to do next

• Confirm whether the land is in the deceased's name alone, and what other assets and beneficiaries there are.
• Decide which grant applies and gather the forms for it.
• Ask for the Certificate of No Infants Interested when you file, if it applies.
• Get a land value in one of the accepted ways for the Statement of Property.
• Collect written consents from every beneficiary before listing the land, unless debts force a sale.
• Keep sale proceeds in the estate until debts and tax clearance are dealt with.

Land transactions involve several offices and strict paperwork. A lawyer can confirm the steps for your particular estate, especially with minor beneficiaries, debts or farmland.

Frequently asked questions