Selling a Deceased Person's House in Ontario Before Probate Is Granted

A house is often the largest asset in an estate, and heirs are often keen to list it before the market cools or carrying costs mount. It is common to ask whether the home can be sold before probate is granted.

The short answer is that it is risky and often impractical. This article explains who has authority, what Ontario's guidance says about timing, and why a buyer's lawyer usually insists on a certificate.

Who has authority over the house?

The deceased's property does not pass directly into the hands of the family. It devolves to and becomes vested in the personal representative, as trustee for those beneficially entitled. In plain words, the estate trustee holds the home for the people who will inherit it.

That is why a child, a spouse or a group of heirs cannot normally sign a listing or sale agreement just because they expect to inherit. Who the proper estate trustee is depends on whether there is a will and who it names, and a lawyer can confirm this for your situation.

What Ontario's guidance says about timing

Ontario's guidance says that if the deceased's real property must be sold, a certificate of appointment of estate trustee should be obtained before anyone enters into an Agreement of Purchase and Sale. The same guidance says probate is normally required where the deceased owned real property that does not pass by right of survivorship.

Some homes avoid this issue because they pass by survivorship, such as property held as joint tenants with a surviving owner. Whether that applies to your house depends on how title is held, which you can see on the title search.

Title, the land registry and the buyer's lawyer

Where no certificate was obtained, a transmission by a personal representative in the land registry must state either that a court appointed the estate trustee or that no application was made because the estate is worth no more than $50,000. A covenant to indemnify the Land Titles Assurance Fund (Form 54) must also be provided.

The Registrar's waiver of the certificate applies only to the first dealing after conversion from Registry to Land Titles. That is a narrow exception and will not fit most family homes.

Even where a technical route exists, a buyer's lawyer will usually insist on the certificate. Buyers want to be sure the person signing has authority. A good-faith purchaser for value from a personal representative holds the property free of the deceased's debts, but that protection depends on dealing with the right person, and buyers do not like to rely on it without proof of authority.

Rules that apply once you can sell

The personal representative can sell to distribute the estate, not only to pay debts. A sale made only for distribution is not valid against a beneficiary who does not agree unless beneficiaries with at least one-half of the interests approve. Conveying or dividing the estate requires the concurrence of the adult beneficiaries, plus the approval of the Children's Lawyer or Public Guardian and Trustee where minors or incapable persons are involved.

There is also a clock. Real property not disposed of or distributed by the personal representative within three years of death vests in the persons beneficially entitled, unless a caution is registered, effective three years and renewable. Meanwhile, the estate trustee is responsible for paying taxes, bills and debts, so the sale proceeds are part of the pool used for them.

• The sale proceeds belong to the estate until debts and expenses are dealt with, not to the person who lists the house.
• Creditors keep their rights against the personal representative personally even after a sale to a purchaser.
• Beneficiaries who disagree about selling can complicate the process, so talk early.

What to do next

If you want to move quickly, the best use of your time is to get the paperwork started rather than to find a buyer first. Preparation can run in parallel with the application.

• Locate the will and find out who is named as estate trustee.
• Get a title search to see how the home is held and whether any mortgages or liens are registered.
• Check whether any beneficiary is under 18, since that affects who must be served.
• Talk to a lawyer about applying for the certificate of appointment before any agreement is signed.
• Keep the house insured, heated and secure while you wait.
• Prepare the house (cleaning, repairs, photographs) so you can list as soon as authority is in place.
• Do not sign a listing or accept an offer until you have confirmed who may sign.

Frequently asked questions