Do You Need Probate to Sell an Inherited Home in Alberta?

Many heirs assume that every inherited house needs probate before it can be sold. In Alberta the answer depends on how the person who died held title to the property.

Below is a plain-language look at when a grant is needed, when Land Titles will work without one, and what to bring. It is general information, and a lawyer can confirm how it applies to your family.

This article covers the law of Alberta.

What a grant is and why Land Titles asks for it

A grant is a document from the Surrogate Court of Alberta, either a Grant of Probate or Letters of Administration. When a tenant in common or sole owner dies, the land vests in their personal representative, and Land Titles asks for the original filed grant with an Application for Transmission to Personal Representative.

Alberta titles are kept under the Torrens system created by the Land Titles Act. The government holds the original titles, documents and plans and is responsible for the validity and security of registered land title information.

When you do not need a grant: surviving joint tenants

When a joint tenant dies, the right of survivorship means their share in the land goes to the other owners. On written application with the required documentation, the Registrar shall cancel the certificate of title and grant a new certificate in the name of the surviving joint tenant. To check whether you are a joint tenant, look at the title, because joint tenancy must be specified on the transfer document and is then shown on title. Where land is transferred to two or more people, other than as executors or trustees, they take as tenants in common and not as joint tenants, unless an intention that they take as joint tenants sufficiently appears on the instrument.

If the title does show joint tenancy, the survivor uses the Statutory Declaration regarding Proof of Death with an original or notarized copy of a Vital Statistics, Medical Examiner's, funeral director's or cremation certificate, and only an original death certificate is returned. This is different from when a tenant in common or sole owner dies, because then the land vests in the personal representative, who files an Application for Transmission to Personal Representative with the original filed Grant of Probate or Letters of Administration from the Surrogate Court of Alberta.

For spouses, the transfer governs. Where land is transferred to a husband and wife, they take according to the tenor of the transfer, so they are joint tenants only if the transfer says so.

When you do need a grant: sole owners and tenants in common

If the deceased was a tenant in common, the share goes to the deceased's estate rather than to the other owners. If the deceased was a tenant in common or sole owner, the land vests in the personal representative.

In those cases Land Titles needs an Application for Transmission to Personal Representative, filed with the original filed Grant of Probate or Letters of Administration from the Surrogate Court of Alberta. A notarized copy is unacceptable, and a grant from another jurisdiction must be re-sealed by the Surrogate Court of Alberta.

Whether any other route exists for a particular estate depends on the facts, so ask a lawyer before assuming one does.

Preparing for a sale once title is sorted

To add or remove a name on title, you use the Transfer of Land form, which must be signed by all current registered owners. It asks for full names, the full legal land description, the consideration and a witness.

Forms are mailed or delivered to a Land Titles office in Edmonton or Calgary, and in-person service was noted as paused. Fees are due at submission. The transferee pays the transfer registration levy.

If the estate has a living spouse, an executor must not distribute any portion of the estate to a beneficiary for 6 months after the grant without that spouse's consent, and non-compliance makes the executor personally liable.

What to do next

• Get a current title search and note whether it says joint tenants or tenants in common.
• Find the will and an original death certificate.
• If title was joint, ask a lawyer to prepare the survivorship application.
• If it was not, ask a lawyer to start the grant application and the transmission.
• Hold off on promising the property to a buyer or an heir until title is in the right name.

Frequently asked questions