Selling an Estate Home When a Beneficiary Is a Minor in Ontario

You are the executor of a parent's or grandparent's estate, and the house needs to be sold or transferred. Then you notice that one of the beneficiaries is under 18. That one fact changes who has to approve the sale and how the paperwork is done.

This article walks through why the estate trustee holds the home, the general consent rule for a sale made to distribute the estate, the extra step when a minor has an interest, and what happens if nothing is done for years. It is general information, not legal advice, and the details of your estate can change the answer.

Who holds the home and who can sell it

When someone dies, their property, including the home and its contents, vests in the personal representative, who holds it as trustee. In Ontario, only an estate trustee has legal authority to manage or distribute an estate, and that includes selling the home or clearing it out.

In practical terms, this means family members, including beneficiaries, cannot list the house, accept an offer or start disposing of its contents on their own. The authority runs through the estate trustee, and the estate trustee is the person who answers for how the home is handled.

The general rule: consent when selling only to distribute

A sale of real property made only for the purpose of distribution is not valid without the required concurrence. Generally, that means a majority of the beneficiaries holding at least half the interests.

This rule is aimed at the situation where the home is being sold simply to turn it into cash to split among beneficiaries. Whether it applies to your sale, for example where a will gives the trustee its own power of sale or the sale is needed for another reason, depends on the will and the facts, so it is worth confirming with a lawyer.

The minor-beneficiary exception

Where a minor has an interest, no sale or conveyance under the Estates Administration Act is valid without the written approval of the Children's Lawyer or, failing that, a judge's order. A majority of adult beneficiaries agreeing is not a substitute for this step.

How the Children's Lawyer reviews a request, and what you would need to send, is not something to guess at. Ask a lawyer how to approach the approval for your particular estate, and allow extra time in your sale plans.

How this shows up in the transfer paperwork

On a transfer of the home, the estate trustee must state that they are entitled to transfer it under the will, the Estates Administration Act and the Succession Law Reform Act, or that a court authorized it. The transfer must also say whether title is subject to spousal rights, and that required consents were obtained or that none are required.

So the minor's interest is not just a background detail. If a required approval was needed and not obtained, the trustee cannot truthfully give that statement. Where the home is in the deceased's name alone, the registration is a transmission application by the estate trustee. Land registration practice is now largely electronic, so your lawyer can confirm the current process.

If the home is never sold, and timing limits on distribution

Doing nothing has its own consequence. Real property that the personal representative has not disposed of within three years after death vests in the beneficiaries under the will or on intestacy. The exception is where the personal representative has registered a caution, which holds off vesting for another three years.

There are also waiting periods before anything can be distributed:

• Where there is no will, no distribution may be made until one year after the death, subject to s. 53 of the Trustee Act.
• No distribution may be made from a deceased spouse's estate within six months of the death.
• After notice of an equalization application by a surviving spouse, no distribution may be made unless the applicant consents in writing or the court authorizes it.

A surviving spouse may also have rights tied to the home itself. For example, a spouse who has no interest in the matrimonial home but is living in it at the death may stay in possession against the estate, rent free, for sixty days after the death.

What to do next

Before listing or transferring the home, work through these points and take them to a lawyer.

• Confirm who the beneficiaries are and whether any are under 18.
• Confirm that you have the legal authority of an estate trustee before acting on the home.
• Find out whether the will or the facts mean the consent rule for distribution sales applies.
• Plan for the Children's Lawyer's written approval or a judge's order if a minor has an interest.
• Note the date of death and diarize the three-year vesting date and any caution decision.
• Check for a surviving spouse and the related waiting periods and rights.
• Keep the home insured and secure while the process runs, and tell the insurer in writing about the death.

The statute sections mentioned here should be re-checked against the current consolidation on Ontario's e-Laws site before you rely on them, because the law can be amended and the wording matters.

Frequently asked questions