Probate Before Transferring an Inherited House to a Beneficiary

You have been told the house is going to you under a will, or you are one of the people entitled to a share. Now you want your name on title. The land registry will not simply accept a will, so there are steps between the death and the transfer.

This article explains the general order of events: the court certificate, the tax that goes with it, the statements the land registry expects, and the points where beneficiaries, minors and mortgages can complicate things.

Why the certificate comes first

Probate is usually needed if the deceased owned real property or held assets at a financial institution that requires it. The application is made to the Superior Court of Justice. A Small Estate Certificate applies if the estate is valued at up to $150,000, and otherwise a Certificate of Appointment of Estate Trustee is sought.

The person who signs the transfer is the estate's personal representative, not the beneficiary. Until a certificate is issued, that person generally has nothing from the court to show the land registry. That is why the court step usually comes before the title step.

The application and who must be told

The application package includes the deceased's original will and any codicil, proof of death, and forms such as Form 74A, the affidavit of service or lawyer's certificate of service, supporting affidavits and a draft certificate, Form 74C. Form 74A requires the total value of real property, personal property and the whole estate at the date of death.

Before filing, a copy of the signed application must go to each estate beneficiary, meaning everyone entitled to a share. For small estates, that copy must be sent at least 30 days before filing, and Form 74.1B must confirm it.

If a beneficiary is a minor, the Children's Lawyer must be served on an application to appoint an estate trustee, and the minor's parent or guardian must be served too. If a beneficiary is an incapable adult, service generally goes through their fiduciary, or to both the Public Guardian and Trustee and the individual if there is none.

• Court staff check for other applications, objections and any more recent will.
• A refusal comes as Form 74O with reasons.
• Ontario states applications are typically processed within 15 business days, longer if documents are missing or a judge must decide an issue.

Tax that comes with probate

Estate administration tax is not a court fee. It is paid as a deposit when you apply and becomes the tax once the certificate is issued. For applications on or after January 1, 2020, there is no tax on an estate valued at $50,000 or less, and above that the tax is $15 per $1,000, or part of $1,000. For example, a $239,250 estate is taxed as $240,000, giving $2,850 in tax.

A mortgage or lien can be deducted from the value of real property, but funeral costs, legal fees, credit card debt and real estate commissions cannot. Assets that pass outside the estate, such as jointly owned property passing to the surviving owner, are not counted.

After the certificate is issued, an Estate Information Return must be filed with the Ministry of Finance within 180 calendar days, even if no tax is payable. Keep the supporting records for four years.

What the land registry expects

A transfer by a personal representative must include statements made by a solicitor. They cover whether the transferor can transfer under the will, the Estates Administration Act and the Succession Law Reform Act, or a court order. They also cover whether title is subject to Family Law Act spousal rights and whether beneficiary consents are required.

Land transfer tax is a separate question. A conveyance from the personal representative to a beneficiary who receives the land in satisfaction of all or part of their beneficial interest is not subject to the tax, and the affidavit shows the consideration as nil. If a mortgage is assumed, tax is payable on the amount owing at registration.

What to do next

If a child has an interest and there is no will or no power of sale, selling the property to distribute the proceeds needs approval from the Office of the Children's Lawyer. That approval is not required where the sale is to pay debts the deceased had at death. A sale and a transfer to a beneficiary are different paths, so decide which one applies early.

• Confirm who the estate trustee is and whether a certificate has been issued.
• Get a current property value, any mortgage statement and the deceased's date-of-death details.
• Ask whether every beneficiary agrees to the house going to one person, and get that in writing.
• Find out whether any beneficiary is a minor or incapable.
• Have a lawyer prepare the transfer and the required statements.
• Diarize the 180-day Estate Information Return deadline.

Frequently asked questions