As experienced real estate lawyers, we are often asked the question: when is probate required before selling a house in Ontario?

When a homeowner passes away, family and friends left behind have a lot to manage. Sorting out the finer points of probate law and how it relates to real estate matters is one of them.

What is probate?

Probate is the Court procedure for:

• formal approval of the will by the Court as the valid last will of the deceased; and
• appointment of the person who will act as the executor of the estate.

Probate refers to the legal court procedure that gives the beneficiaries the right to obtain the physical and financial assets as promised in a will.

When is probate required before selling a house in Ontario?

Probate may not always be needed, but most estates ought to be probated. Probate is mostly required when the court approval of the awarding of the assets in the estate trustee by the deceased is needed. It can be for validating the will, choosing the executor and also in respect to the executor since there may arise a dispute about whom the executor should be or the beneficiary may not be in a position to consent by him/herself.

How long does probate take?

If you apply diligence, the probate application can take days and not weeks to be prepared and filed. After the application is filed, it takes some time for the court to process the application. In Ontario, the court may take about 15 business days.

Once you receive the probate, you stand a chance to administer the estate to the buyer. Before then, however, you require a clearance certificate offered by the Canada Revenue Agency. This may take around 4-6 months.

How does probate affect real estate?

Basically, what the probate does is that it slows the process of selling the estate due to the process involved in acquiring it. On the other hand, it ensures that the rightful person has been given the estate.

Alternatives to waiting for the grant probate

• Agree with the buyer to take possession on a tenancy-at-will basis – This is where you agree with the buyer to take ownership without them paying or maybe paying you some small rent. This is a bit risky since the buyer may damage the property or do renovations, thereby, leaving you stranded on what to do.
• Request for a rush of the probate application – At this level, the process is reduced to two steps, but the estate costs increase. In other words, you trade off the cost for certainty.
• Apply to the court for a limited grant of probate –  This is done on a specific purpose and in this case, for completing the sale. Even with this, you still need to complete the full probate application.

Dealing with the paperwork and the court can be a bit complex, and therefore you need professional assistance. To get in touch with an experienced and professional lawyer who will help you understand all aspects of buying a home, SatLaw  is there for you. Feel free to contact us for more information.