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Real Estate agents – before listing an Estate property...

Estate Sales can be challenging and should be handled with diligence and sensitivity. If you are an agent who has been contacted by a family member to list a property on behalf of a deceased individual you should ask the appropriate questions.

First, does the deceased have a valid Will and are there any restrictions in the Will with respect to disposing of the real estate? Second, even if there is a Will, with no restrictions in it, the executor will be required, in most cases, to make an application to the Superior Court of Ontario, for a Certificate of Appointment of Estate Trustee ("Probate”). This is essentially a court order which confirms the executor’s authority to sell the property and confirms the Will as being the last Will and Testament of the deceased. Unfortunately, the granting of Probate in a timely manner is in the control of the court system, and not the executor. Sometimes there are issues with the estate which will delay the court order or there may be litigation between beneficiaries which will hold up Probate indefinitely.

If there is no Will it is practically certain that Probate will be required. In order to protect your seller/executor client where Probate is required it would be prudent to discuss holding off on listing the Property until Probate has been obtained or, at the very least, include a Seller’s condition in any offer which allows the seller to get out of the Agreement if it looks like there will be a problem getting Probate.

There is an exception to the requirement for getting a Court Order if the proposed estate sale is a “First Dealing” with the Property since the date of conversion from the Registry System to the Land Titles System. A brief consultation with a lawyer at the outset can help answer questions such as, whether or not the “First Dealing” exception applies to your estate sale and the drafting of an appropriate condition to insert in an offer to protect your seller/executor where Probate is required.

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