Check title. If the property was owned as joint tenants and one of them has died, then the other
can sell it. All the survivor needs to do is file a Death Certificate and Statutory Declaration at
Land Title Office and title will be issued in the survivor’s name. The survivor cando that at the
lawyer’s office when signing a transfer, so Realtors don’t have to do anything differently.
When a sole owner has died, (or the last survivor of j oint tenants), then the estate must be
probated before title can be transferred.
WHAT PROBATE MEANS:
The Court must approve the Will, assuming there is one, and then issue a court order called a
Grant of Probate to the executor named in the Will. It takes lawyers about a month to get the
information together to make the Court application, then after the Application for Probate is filed
in the Calgary Court is currently taking 6-8 weeks before it will issue the Grant of Probate. So
the total time to expect from when the lawyer starts is about 3 months.
The Grant of Probate empowers the executor to sign the Transfer of Land. The property cannot
be transferred until that Grant of Probate is issued.
On the other hand, the Executor is empowered by the Will to act immediately upon death. So the
Executor does not have to wait for the Grant of Probate before listing the property. He or she
just has to wait for it to be issued before transferring title.
Very often the Executors want to get the property sold as soon as possible. In fact, often they are
anxious to do so because debts have to be paid and no one may be able to make mortgage
payments.
Therefore you as Realtors can get a listing signed by the Executor at any time following the death
of the owner if there is a Will. What you need to do though is to contact the lawyer for the
Executor. You should confirm with the lawyer that the person you are dealing with is indeed the
proper Executor under the Will. (If the Executor does not have a lawyer yet, hopefully you will
refer the Executor to me! Estates are a large part of what we do.)
IF THERE IS NO WILL:
If no Will is in place, the next of kin are entitled to apply to the Court for a Grant of Probate.
The person who applies for the Grant has no power to act until the Grant of Probate is issued by
the Court, so it is particularly dangerous for a Realtor to take a listing from a spouse or child of
the deceased if there is no Will naming them as executor, although I do see it done from time to
time. Certainly it is common that the surviving spouse or children may want you as a Realtor to
list it as quickly as possible. In that case, get the Estate’s lawyer to confirm in writing to you that
you can go ahead and list the property before you do so.
Whether there is a Will or not, if you list a property or have a buyer that is considering buying a
property before a Grant of Probate has been issued, then you will have to address terms in the
contract that will apply if the Grant of Probate is delayed beyond the anticipated closing date.
This happens fairly often. The terms will vary depending on the circumstances but typically what
we will do is recommend that you insert a term that stipulates that if a Grant of Probate is not
issued prior to closing, then the parties agree that the closing will be postponed until 7 days after
the Grant of Pobate is issued. Also you will have to write in a term that stipulates under what
circumstances the buyer can move into possession as a tenant on the possession date while he is
waiting for the Grant of Probate to be issued. That can get complicated and what you will write
in as a term will vary depending on the circumstances. So call us early if you are faced with
writing an offer in those circumstances.
If you act for a buyer, make the buyer aware that closing may be delayed. If the buyer has a
mortgage commitment that will expire before Probate is granted, that creates additional risks and
issues. If the buyer absolutely needs possession by a certain date, then you will have to insert
term in the contract that enable the buyer to take possession as a tenant pending issue of the
Grant of Probate.
Sometimes, as Estate lawyers, we can apply to the Surrogate Court to expedite matters to enable
an offer to be accepted and title transferred expeditiously. However, that is expensive and
should not be used Where you can agree to terms to alleviate the issues.
In every case, you should work closely with the lawyer for the Estate on these sales.
-Bill Fric