- An estate normally must be probated if the deceased owned real property in their own name.
- Land registry staff accept a certificate of appointment of estate trustee as proof of authority over a deceased owner's land.
- A surviving joint tenant takes the property by survivorship without an estate certificate.
If you are the estate trustee and the deceased owned a house, a common question is whether you need probate before you can sell it or transfer title. The answer depends largely on how the property was owned.
This article explains the general rules and the land registry exceptions. Practice can vary, so a lawyer should confirm what applies to your property.
When probate is usually needed for a house
Probate is not always required, and the type of assets usually decides whether it is needed. An estate normally must be probated if the deceased owned real property in their own name.
In Ontario, the court document is called a Certificate of Appointment of Estate Trustee. Land registry staff accept it as proof of an estate trustee's authority to deal with a deceased owner's land.
Exceptions that may avoid a certificate
| Situation | What the land registry rules say |
|---|---|
| Surviving joint tenant | Takes the property by survivorship through a survivorship application under Land Titles Act s. 123, stating the joint tenancy and the date of death, with a Family Law Act statement for deaths on or after March 1, 1986. No estate certificate is needed. |
| Estate worth $50,000 or less | A transmission can be registered without a certificate if the applicant states that none was applied for because the total estate value is not more than $50,000, and a covenant to indemnify the Land Titles Assurance Fund is filed. |
| First dealing after conversion from Registry to Land Titles | The land registrar may waive the certificate. The affidavit must state the estate's value, prove the will was signed properly and is the last will, and confirm no certificate was applied for. A covenant to indemnify the Land Titles Assurance Fund is always required. |
The $50,000 land registry rule comes from an older bulletin, so confirm current practice before relying on it. It is also separate from the $150,000 limit for Small Estate Certificates.
Smaller estates and the Small Estate Certificate
Since April 1, 2021, an estate valued at $150,000 or less can use the simplified Small Estate Certificate process. The application must be sent to beneficiaries or their legal representatives 30 days before filing, and processing is usually about five business days. Estates over $50,000 and up to $150,000 pay Estate Administration Tax when the application is filed.
Estates over $150,000 must apply to the court for a Certificate of Appointment of Estate Trustee instead.
Applying, tax and the value of the house
- File at the Superior Court of Justice in the county or district where the deceased lived at death.
- The tax is paid on filing by certified cheque or bank draft payable to the 'Minister of Finance'.
- Applications are usually processed within 15 business days, longer if documents are missing or a judge must decide an issue.
- The house counts at its appraised value on the date of death, less mortgages or liens on it.
- Real estate located outside Ontario is not included in the value for Ontario tax.
A bond may be required, for example where there is no will, where the applicant was not named as estate trustee, or where the applicant lives outside Ontario, Canada or the Commonwealth. It is generally twice the estate's value unless a judge orders otherwise.
What to do next
- Find out how title was held: in the deceased's name alone, or jointly with someone else.
- Get a copy of the deed or property record and the will, if any.
- Arrange an appraisal as of the date of death.
- Find out whether the estate qualifies for the Small Estate Certificate.
- Talk to a lawyer before relying on any land registry exception, especially a covenant to indemnify the Land Titles Assurance Fund.
Do not distribute sale proceeds until you have checked tax obligations. A representative who distributes before getting a CRA clearance certificate is personally liable for any tax debt, up to the value of the assets distributed.
Frequently asked questions
Do I need probate to sell a house in Ontario?
Usually yes, if the deceased owned the house in their own name. Exceptions exist, such as a surviving joint tenant taking by survivorship. A lawyer can confirm what applies to your property.
What if the house was owned jointly?
A surviving joint tenant registers a survivorship application under Land Titles Act s. 123, and no estate certificate is needed. Jointly held assets that pass automatically to the other owners are also left out of the estate value for the tax.
Can I transfer the house without a certificate if the estate is small?
A transmission can be registered without a certificate if the total estate value is not more than $50,000 and a covenant to indemnify the Land Titles Assurance Fund is filed. This rule comes from an older bulletin, so confirm current practice first.
How long does it take to get a certificate?
Applications are usually processed within 15 business days, or about five business days for small estates. These are typical times, and delays occur if documents are missing or a judge must decide an issue.
Sources
- Ontario.ca – Estate Administration Tax — ontario.ca
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Ontario.ca – Probate of a small estate — ontario.ca
- Ontario.ca – Land Registration Bulletin 95003 — ontario.ca
- Ontario.ca – Land Registration Bulletin 2000-6 Estate documents — ontario.ca
- Ontario.ca – Land Registration EM200003 Estate Conveyancing — ontario.ca
- Canada.ca (CRA) – Doing taxes for someone who died — canada.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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