- Probate is normally needed when the deceased owned real property, and the certificate should be obtained before anyone signs an agreement of purchase and sale.
- The certificate is what gives the estate trustee authority to manage estate assets and pay estate debts.
- A house held in joint tenancy follows different rules than one held alone or as tenants in common.
- Estate administration tax is paid as a deposit when you apply for the certificate.
You have inherited a house, or you are the person named to deal with it, and the market looks good. You would like to list it now rather than wait months. The question is whether you can legally sign a deal before the court process is finished.
In Ontario the short answer is that the safe order of events is to get authority first and sign second. This article explains why, what a buyer's lawyer will look for, the narrow exceptions, and how to keep a sale on track.
Why authority matters before you list
When someone dies owning a house in their own name, the house does not belong to the family in a loose sense. It is an estate asset, and someone must have legal authority to deal with it. Ontario guidance says probate is normally needed when the deceased owned real property, and that a Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone signs an agreement of purchase and sale of the deceased's real property.
The Certificate of Appointment gives the estate trustee authority to manage the estate assets and pay the estate debts. A buyer and their lawyer want proof that the person signing the sale really can sign it. Being named in a will, or being the eldest child, is not the same as holding the certificate.
Which certificate applies
A Small Estate Certificate is available for estates valued up to $150,000. Above that, you apply for a Certificate of Appointment of Estate Trustee. Because a house is often worth far more than that on its own, many estates with a house will need the Certificate of Appointment, but the value of the whole estate and the facts matter, so confirm with a lawyer.
| Item | What to know |
|---|---|
| Small Estate Certificate | Available for estates valued up to $150,000 |
| Certificate of Appointment of Estate Trustee | Applied for when the estate is above that amount |
| Estate administration tax | $15 per $1,000 (or part thereof) of estate value above $50,000 for applications on or after January 1, 2020 |
| Estate Information Return | Due within 180 calendar days of receiving a certificate |
The tax is paid as a deposit when you apply for the certificate. That means you may need funds available before the house is sold, which is a practical reason to plan early.
What a buyer's lawyer will require
Only authorized Teraview account holders and their registered users can create and submit documents in Ontario's electronic land registration system. Lawyers are among the authorized groups. Who handles the registration in your sale depends on your situation, so it is worth confirming with a lawyer.
On a Land Titles transfer by an estate trustee, a solicitor must sign statements covering the authority to transfer, any court appointment (certificate with or without a will), Family Law Act spousal rights, and consents. Expect questions on each of these.
- The certificate itself, or proof that one is being applied for.
- The will, if there is one, and who is named as estate trustee.
- Whether a surviving spouse has rights under the Family Law Act.
- Whether other people must consent to the sale.
- How the deceased held title, alone, as joint tenants or as tenants in common.
Narrow exceptions you should not rely on
Where no certificate was obtained, the land registration bulletin allows a statement that the estate is not more than $50,000, together with a covenant to indemnify the Land Titles Assurance Fund (Form 54). This is a statement a solicitor makes in a specific registration setting. It is not a general rule that estates under $50,000 can skip the certificate.
There is also a narrow waiver in the Land Titles system. Registrars may waive the certificate only for a property converted from Registry to Land Titles where the transaction is the first dealing after conversion, supported by an affidavit stating the estate value and that a certificate was not applied for, and always with a covenant to indemnify the fund. Most home sales will not fit this, and the guidance involved is old, so a lawyer should confirm whether anything applies to your property.
When the house may not be part of the estate
If the deceased and another person held the house as joint tenants, joint tenancy includes a right of survivorship. A tenancy in common does not, so a deceased tenant in common's interest falls into the estate. A surviving joint tenant applies for survivorship, and the statements can only be made by a solicitor.
For a death on or after March 1, 1986, the application must also be supported by a Family Law Act statement about whether the owners were spouses or whether the property was a matrimonial home. In some cases a joint tenancy in a matrimonial home between a spouse and a third person is deemed severed immediately before death. Which route applies depends on how title was held, so check the title before you plan the sale.
What to do next
- Locate the will and the death certificate, and find out who is named as estate trustee.
- Get a copy of the current title to see how the deceased held it.
- Speak to an estate lawyer about which certificate you need and how long to allow.
- Plan for the estate administration tax deposit.
- Ask a real estate agent to wait on signing any agreement until the certificate is issued.
- Keep the house insured, heated and secured while the process runs.
- Calendar the Estate Information Return deadline.
Preparing the application early is the best way to shorten the wait. If a buyer is keen, a lawyer can advise whether the timeline and closing date can be structured to suit the certificate being in hand.
Frequently asked questions
Can I list the house before probate is granted?
Listing and signing are different. Ontario guidance says the certificate should be obtained before anyone signs an agreement of purchase and sale of the deceased's real property. Talk to a lawyer before any listing so you do not commit to terms you cannot meet.
Do I always need probate to sell?
Probate is normally needed when the deceased owned real property. Whether it applies depends on how title was held. A surviving joint tenant uses a survivorship application instead, and the statements supporting it can only be made by a solicitor.
What if the estate is small?
A Small Estate Certificate is available for estates valued up to $150,000. A bulletin also allows a solicitor statement about an estate not above $50,000 with an indemnity covenant in some Land Titles transfers, but that is not a general exemption.
Do I pay tax to get the certificate?
Estates of $50,000 or less owe no estate administration tax but still need an Estate Information Return. Above that, the tax is $15 per $1,000 (or part thereof) of value above $50,000, paid as a deposit when applying.
Sources
- Ontario.ca – Register land documents electronically — ontario.ca
- Ontario Land Registration Bulletin 2000-6 – Estate documents — ontario.ca
- Ontario Land Registration Bulletin 86001 – Family Law Act, 1986 — ontario.ca
- Ontario.ca – Transactions with Nominal Consideration — ontario.ca
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Ontario.ca – Estate Administration Tax — ontario.ca
- Ontario Land Registration Bulletin EM200003 – Estate conveyancing — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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