Can You Sell Estate Property Before Probate Is Granted in Ontario?

When a house sits empty and carrying costs keep running, it is natural to ask whether you can list it now rather than wait for the court. The answer depends on the type of asset, how it was owned and who the buyer's lawyer will accept as having authority.

This article explains the main rules that apply in Ontario. It is general information, and a lawyer should confirm the position before you sign anything.

What authority does an executor have before probate?

Under the Estates Administration Act, the deceased's property vests in the personal representative, who holds it as trustee for the people entitled, subject to the payment of debts.

Having that role does not mean every third party will deal with you without a certificate. If the deceased owned real property or assets held by a financial institution, the estate normally has to be probated, and institutions may require a certificate of appointment or a small estate certificate.

Selling a house or land

The Land Titles Act generally requires the estate trustee to obtain a certificate of appointment before dealing with land after an owner dies. In practice, that means closing a sale of Ontario land usually waits for the certificate.

There is a narrow exception where there is a will. The certificate may be waived if the property was converted by the Ministry from Registry to Land Titles and this is the first dealing since conversion. The affidavit must set out the estate's value and state that the will is the last will and that no certificate was applied for. A covenant to indemnify the Land Titles Assurance Fund is still required.

Whether your property fits this exception is a technical question for your real estate or estates lawyer.

Approvals and special situations

• If land is being sold only for distribution, the sale is not valid without the beneficiaries' concurrence, or approval from the Children's Lawyer or the Public Guardian and Trustee.
• A sale involving a minor's interest needs the Children's Lawyer's written approval or a judge's order.
• If a spouse dies owning the matrimonial home as joint tenant with someone other than their spouse, the joint tenancy is deemed severed immediately before death, so that share forms part of the estate.
• A spouse with no interest in the matrimonial home who was living there at the death may stay rent-free for 60 days.
• Assets held jointly or with a designated beneficiary, such as a joint bank account or an insurance policy, pass according to how they are owned or designated, so probate is not always required.

Debts, timing and distribution

Selling is not the same as distributing. The estate is distributed only after funeral and burial expenses and debts are paid. If assets are not enough to pay all debts, they are paid proportionately, with no kind of debt taking priority over another.

A personal representative who has given the required notices may distribute the estate and is not liable to a creditor whose claim they had no notice of at the time. For a surviving spouse, no distribution may be made within six months of the death unless the spouse consents in writing or the court authorizes it.

Real property the personal representative has not dealt with within three years of death vests in the beneficiaries without a conveyance, unless a caution is registered in the prescribed form.

What to do next

• Find out how each asset was held: solely, jointly, or with a named beneficiary.
• Ask each bank or institution what it requires before it will deal with you.
• Secure and insure the property, and keep records of costs.
• Start the probate application early if one is needed.
• Do not sign a binding agreement of purchase and sale until a lawyer has reviewed your authority and timing.

Frequently asked questions