Selling an Inherited House in Alberta Before the Estate Is Settled

Selling a house after someone has died can feel urgent, especially if the property is empty and carrying costs keep arriving. But you cannot simply list it and sign. Who has authority depends on how the house was owned and what documents exist.

This article explains the usual path in Alberta: working out how title was held, getting the right authority, registering at Land Titles, and what a buyer's lawyer will generally want to see.

This article covers the law of Alberta.

Start with how the house was owned

The first question is how title was held. Joint tenants have a right of survivorship, so when one dies the share goes to the other owners. Tenants in common each hold an individual share, and a share does not pass to the other owners but to that person's estate.

Where co-owners take title without saying they are joint tenants, they take as tenants in common unless the intention to be joint tenants sufficiently appears on the transfer. A current title search shows which applies.

When you need a grant and who can sign

If the deceased was a sole owner or a tenant in common, the land vests in the personal representative. To register that, you file an Application for Transmission to Personal Representative with the original filed Grant of Probate or Letters of Administration from the Surrogate Court of Alberta. A notarized copy is unacceptable, and grants from other jurisdictions must be re-sealed by the Surrogate Court of Alberta.

In practice, this means the personal representative, not an heir, is the person who signs to sell. Being named in a will or living in the house does not by itself give authority to transfer title.

If the deceased was a joint tenant, the survivor does not need probate for the house. A Statutory Declaration regarding Proof of Death is used, with an original or notarized copy of an approved death certificate document. On written application with the required documents, the Registrar shall cancel the certificate of title and grant a new one in the name of the surviving joint tenant.

How the sale is registered at Land Titles

After the personal representative is registered, the transfer to the buyer is prepared on the Transfer of Land form, which is the form used to add or remove a name on title and must be signed by all current registered owners. The form asks for the full names of the transferors, the new owners' names and addresses, the full legal land description rather than the civic address, the consideration, and a witness to the signatures.

Documents are mailed or delivered to a Land Titles office in Edmonton or Calgary, and in-person service has been noted as paused, so confirm current options before you go. Fees are due at submission.

The transfer registration levy is $50 plus $5 for each $5,000 or portion of the value of the land, paid by the transferee; for $200,000 that is $250.

What a buyer's lawyer will look for

The buyer's lawyer will want to be satisfied that the seller has authority and that title can be registered cleanly. The exact requirements vary by transaction, so confirm them with your own lawyer.

• Proof of the grant or of survivorship, as described above.
• A title search showing current owners and any registered claims.
• Confirmation of any mortgage on the property and the lender's requirements, which depend on the mortgage contract.
• Any caveat that has been registered; a person claiming an interest under a will, trust or specified statute may file one.

If a surviving spouse is entitled to a say, note that for 6 months after the grant the executor shall not distribute any portion of the estate to a beneficiary without the living spouse's consent. The executor is personally liable if that is not followed.

What to do next

• Get a current title search to see how the house was owned.
• Locate the will and the death certificate.
• Find out whether a grant is needed, and apply to the Surrogate Court of Alberta if so.
• Contact the mortgage lender and insurer about the empty property.
• Speak to a lawyer and an accountant before selling or distributing proceeds, especially about tax, such as the principal residence designation, which must be reported on the return.

Frequently asked questions