The order of operations from a death to a closed sale: authority, probate, beneficiaries, price, tax and the three-year rule.
⚖️ This is general information, not legal advice. It can't account for your specific situation. Use it to get oriented, then confirm the details with a licensed Ontario lawyer.
When an owner dies, their real property does not pass to the family; under the Estates Administration Act it vests in the estate trustee, who holds it for the people entitled under the will or on intestacy. Selling it is one of the trustee's most visible jobs and one of the easiest to get wrong, because the trustee is answerable to beneficiaries, creditors and the Canada Revenue Agency at the same time. This roadmap sets out the steps in the order they usually have to happen. Every estate is different, but the sequence rarely is.
Step 1: confirm who has authority
Find the original will. The executor it names is the estate trustee and may act from the date of death, although third parties will want court confirmation. If there is no will, nobody has authority until the court appoints an estate trustee without a will. Check how title was held: a home owned in joint tenancy passes to the surviving joint owner by survivorship and is not an estate asset at all. Where two or more trustees are named, the Act does not allow one of them to sell alone without a judge's authority; all must sign.
Step 2: decide whether probate is required
For almost every estate that owns land, it is. The land registry will not accept a transfer signed by an estate trustee without a Certificate of Appointment of Estate Trustee, apart from a narrow exception for property that has never been dealt with since it moved into the Land Titles system. Applying means filing with the Superior Court of Justice and paying estate administration tax on the value of the estate, including the home; the current rate and thresholds are published by the province. The court's processing time varies by region and season, so start early.
Step 3: secure the home in the meantime
Tell the insurer the house is vacant; most policies restrict coverage after a short period without occupants. Keep the heat on, arrange for someone to check the property, redirect mail, and keep paying the mortgage, taxes and utilities from estate funds. Do not distribute contents until the will's gifts are known. A trustee who lets a vacant house deteriorate can be held personally responsible for the loss.
Step 4: bring the beneficiaries with you
If the will gives the trustee a power of sale, the beneficiaries' consent is not required, although keeping them informed avoids later objections. If the will is silent and the sale is for the purpose of distribution only, section 17 of the Act requires the concurrence of a majority of the beneficiaries holding at least half of the interests. Where beneficiaries disagree about whether or when to sell, the trustee can apply to the court for directions rather than pick a side.
Step 5: price it as a fiduciary
The trustee's duty is to obtain the best price reasonably available, not the fastest sale. Get a written appraisal or a documented opinion of value before listing, market the property openly, and keep every offer. A sale to a trustee, a family member or a beneficiary at any price short of demonstrable market value invites a claim, and a trustee who wishes to buy should obtain the written consent of every beneficiary or court approval first.
Step 6: deal with tax before distributing
The deceased is treated as having sold the home at fair market value on the day of death. If it was their principal residence, the exemption is claimed on the final return. Any change in value between death and the estate's sale is the estate's own gain or loss and goes on the estate's return. Before distributing the proceeds, the trustee should obtain a clearance certificate from the CRA or hold back enough to cover tax, because a trustee who distributes first can be personally liable for unpaid tax.
Step 7: watch the three-year rule
Section 9 of the Estates Administration Act provides that real property not sold or conveyed within three years of the death vests automatically in the beneficiaries, unless the trustee registers a caution on title before the deadline. A trustee who is still holding a house near the third anniversary should speak to a lawyer about registering the caution.
Step 8: close and account
The trustee signs the transfer in their capacity as estate trustee, the certificate is referenced on title, and the proceeds are paid into the estate account, never to a trustee personally. Record the sale in the estate accounts with the commission, legal fees and adjustments, so the beneficiaries can see exactly how the house became a number.
How Treadstone Law can help
The trustee's protection is process: authority confirmed, value documented, beneficiaries informed, tax settled. Follow the sequence and the sale of the house is usually the simplest part of the estate.
Treadstone Law handles real estate matters on a transparent flat fee, with online intake and a real lawyer on your file, across Ontario.
- Start your file online at treadstonelaw.ca/start-file
- See flat-fee pricing at treadstonelaw.ca/pricing
- Learn more about our real estate services at treadstonelaw.ca/real-estate
- Or call us: 1-844-900-1070
This is not legal advice
This guide is general information, not legal advice. Reading it does not create a lawyer-client relationship. Ontario laws and government programs change, and how the law applies depends on your specific facts. For advice about your situation, speak with a licensed Ontario lawyer. Treadstone Law is licensed by the Law Society of Ontario — reach us at 1-844-900-1070 or start a file online.