Is Probate necessary to sell a house?
Once a Certificate of Appointment of Estate Trustee (probate) is issued, an estate trustee is legally able to liquidate and distribute the assets of an estate. It can take anywhere from a few weeks to several months before probate is granted, and the delay can be costly. In fact, I was recently talking to someone upset about the difficulties caused by having to wait almost one year - he understood he couldn't sell his late mother's house until the Certificate was issued, and he had the sole financial burden of maintaining the property until that time.
And so I wondered, is probate absolutely necessary in all cases? Bob Aaron, a real estate lawyer, addressed this very issue in a recent article in the Toronto Star. His advice was that in most cases obtaining probate is not necessary, and he set out the following steps that can be taken to avoid it:
Land Titles System
- register an application containing a copy of the Will and a death certificate;
-file a declaration that the Will was the last Will and the value of the estate does not exceed $50,000 (in appropriate circumstances, the land registrar waives the $50,000 limit); and
-file a promise, signed by the beneficiaries, to indemnify the Land Titles Assurance Fund in the event a third party claim is made as a result of registration of the application to transfer title to the land.
Registry System
Mr. Aaron notes that it is easier to transfer title to land registered under the old registry system (by simply registering a copy of the Will and, typically, a declaration by a witness to the Will). He also states that land which was previously registered under the registry system and subsequently converted by the government to the electronic land titles system can often be transferred under the old registry rules if there has been no other registration on title since the conversion.
So it seems retaining an estate administration and/or real estate lawyer to explore your options could end up saving you a lot of time and money in the right circumstances.
Thanks for reading,
Natalia Angelini
