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Sunday, October 10, 2010

Can I sell estate property before getting probate?

Because it can take weeks to receive a Grant of Probate from the courts, and because executors are usually under pressure from beneficiaries to wrap up the estate quickly, executors are often in a hurry to sell the house or other property in the estate. This is particularly true if the market is in the seller's favour at the time. They don't always want to wait until they've received the paperwork from the court.

Unfortunately, the executor does have to wait for the actual court order. It's not just a technicality or insignificant piece of paper. Think about what it actually does. It allows someone else to sell a person's house and look after the money. If a Probate order wasn't needed, then what would stop pretty much anyone from trying to sell that house and keep the money? The probate order is proof that the person selling the house, who after all is not the owner of it, has the legal right to sell it and accept the money.

An executor who goes ahead without the probate and tries to sell a property will find that the Land Titles Office or registry will not allow this to happen. They must have a court certified copy of the probate before they will register a new owner.

This doesn't mean that the house can't be listed for sale while the probate documents are being processed at the court. The executor who is selling the house just needs to make sure that he or she is clear on the sales agreement that the sale is subject to a probate order being granted.

Beneficiaries who are pressuring for the sale of the house need to realize that once the executor has filed the documents and is waiting for the probate order to be issued, there is little the executor can do to speed up the process.

128 comments:

  1. how long do you have to sell property or a house in the estate? Is there anyway to keep property if there is no will but all beneficiers are in agreence with the executor keeping the property?

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    Replies
    1. If, for some reason, the beneficiaries agree that the property can be kept in the name of the estate for a while rather than being transferred, then yes the executor can do this. However, make sure you have covered off the logistics of keeping this property in trust. For example, where is the money coming from for repairs and property tax? Who is paying for the insurance? Are the beneficiaries prepared to deal with the capital gains tax that will arise if the property increases in value while held by the estate? And what happens if the bottom falls out of the housing market, or the house burns down? Who do you suppose will be left holding the bag on that one? Remember that the executor will have to file a tax return for the estate each year that it still holds property, which will cost money. And of course, sooner or later one of the beneficiaries is going to get tired of the situation and declare that he/she was never in favour of the arrangement in the first place. But other than that... knock yourself out.

      Lynne

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    2. one more question please.. is there any set amount of time i have to settle the estate as there is no disagreement between the beneficeraries. its almost been 3 years and the house is the only thing in the estate no.money was left behind. id really appriciate your help again.

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    3. That's actually the same question... but perhaps I wasn't clear when I answered. There is no set limit by which you must sell the property, as long as the beneficiaries are ok with it, and you're prepared to deal with the things I mentioned above - property tax, maintenance, insurance, capital gains tax, annual tax returns etc.

      Lynne

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    4. thank you that was my biggest concern should i have the house title put into my name asap or better to leave it. it still remains in my mothers name

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  2. The deed for my father's house was in his name and my deceased mother's name. He recently passed away and left the house to me and my two siblings. The will is going to be probated. Do I understand correctly that the deed cannot be transferred to our names until the probate process is complete? And do I understand correctly from your post, that the house can be listed, but not sold until the probate process is complete? My sister wants to sell the property as soon as possible and, after speaking to a lawyer, she thinks that the issuance of the deed to us (the beneficiaries), the probate process, and the sale of the house can be done simultaneously. Is this correct?
    Thanks

    ReplyDelete
    Replies
    1. Yes, you understand correctly. One thing though - if the house still has your mother's name on it, you'll have to deal with that too. This might mean probating her will as well.

      Lynne

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    2. Thank you for clarifying that. So, can, as my sister believes, the issuance of the deed, the sale of the house, and the probate process be done simultaneously?
      Also, I don't think my mother had a will. If she did, it all went to my father. That would be an added complication, wouldn't it? If she didn't have a will?
      I know you've been asked this before, but can you give a ballpark time frame for the probate process? e.g. at least 6 months?
      Thanks again for your help.

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  3. Lynne, approximately how long does it take to get a grant of probate? It is my understanding that the house can be put up for sale before the grant is issued and then when it comes in, the sale can happen after that. I am in a situation where my parents have both passed away and my mother's will has to be sent to probate. Three siblings have been named beneficiaries. My brother does not wish to retain the family home and neither do I. My sister on the other hand won't decide. I would like it if she would either pay us out of our portion or decide to put it up for sale and the three of us split the residual. All of course in the proper time frames. Grant of probate and CRA clearance all completed. How long is reasonable for her to hold things up?

    ReplyDelete
    Replies
    1. Once the application for probate has been filed at the court, you can expect to wait about three weeks. Sometimes there's a backlog, and occasionally I've had to wait up to six weeks.

      Lynne

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  4. Hi Lynne, Is it possible to buy a house (estate sale) where probate has not been received (court order). My Lawyer told me that we can still get the possession but will not release the money until probate is done and at that time will pay the extra interest to vendor.

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    Replies
    1. Yes, this is possible. In fact it's not unusual. The purchase agreement must specifically state that the sale is subject to the probate application going through. You would pay extra interest because you would be using the house before you paid for it. Keep in mind that if there is a delay in the probate for any reason, you could end up paying quite a bit of interest.

      Lynne

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    2. Hi Lynne, you speak of buyers paying interest. I was under the understanding a buyer could live (pay rent to the estate) in the estate home and take full possession after probate clearance & land title name transfers etc
      What is this 'interest' about?
      Thanks

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  5. Hello Lynne, I inherited a property. Can I put the Estate for sale before taxes are payed. The taxes are about $8000.00 which I cannot afford until he house is sold. So if I file the papers with court, will I be able to sell the house and then use some of the funds to pay the $8000.00 so that I can get the certificate? Is the certificate the same as the Probate Order?

    Thanks

    Merle

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    Replies
    1. Hi. Yes, you can sell the house and use the proceeds to pay the tax. This is not at all unusual. If you are the executor (and it sounds as if you are) and you don't pay the tax from the sale proceeds, you will then owe that $8,000 personally.

      The certificate is a Tax Clearance Certificate which is issued by Canada Revenue Agency when all tax returns have been filed and all tax has been paid. This is not the same as the probate order, which comes from the courts. You'll need both.

      Lynne

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  6. Hi Lynn,
    I have probate granted in another country, but my mother had a house here in Ontario. I have already paid inheritance tax on the house and so I want to know if I can sell it without getting probate here. I am the sole executor and sole beneficiary. I have read that I can sign something for the Land Registry that indemnifies against future claims?
    Thanks!

    ReplyDelete
    Replies
    1. You will need probate in Ontario. When the will has already been sent to another court, as your mother's has, the application in Ontario is actually called "re-sealing" the order of probate.

      I have never heard of anything at the land registry that indemnifies against future claims as you mention. It doesn't make sense to me that there would be such a thing, either. The land registry's job is to keep track of the legal ownership of property, and they can't allow you to sell someone else's property without legal authority.

      Lynne

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  7. Hi Lynn,

    My mother passed away 3 years ago and did not have a will. My sister and I lived with her since birth and were named the beneficiaries of her assets(RRSP's,pension etc). Now I am selling her house, which my mother and I jointly owned. Now the lawyer says I need to do a probate for this, is this correct?

    Thanks

    ReplyDelete
    Replies
    1. Hi. I suspect, based on what you've told me, that you and your mother were not actually joint owners of the property. You can have two or more people on a title and not be joint owners.

      I assume that the lawyer you spoke with did an updated title search on the house to check the status of the title. If the lawyer says you need probate, it must be because you and your mother were actually tenants in common on the title, and not joint owners.

      Most people think that the fact there is more than one name on the title must mean the owners are joint, which carries with it a right of survivorship, but that can't be the case for you. The choice of joint ownership or tenancy in common would have been made at the time the house was purchased.

      If you are not satisfied with the lawyer's advice that probate is needed, take the updated title search to another lawyer for a second opinion.

      Lynne

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  8. Hello Lynn,

    When the will is finally probated, what should go on the tile of the home? Is it the executors names or what exactly should it be changed to in order to sell it as executors?

    looking for advice.
    thank you.

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    Replies
    1. Hi. Yes, it goes into the executors' names, like this: "Joe Smith and Frank Smith, Executors of the estate of Susan Smith". In other words, it shows that the title is only theirs on behalf of the estate.

      Lynne

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  9. My grandparents are in a nursing home..can their house be sold before their death by one of their children? was the will legally supposed to be read before death?

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    1. Hello. I answered this question in a new blog post dated January 26, 2014. It was a long answer :)

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    2. Hi Lynne. Excellent Blog. The person who applied for the grant of probate, had put the house on the market and is stating on all the real estate paperwork as power of attorney,(owner is passed away). Right after the will was put into probate there became a challenge against the Will as not being valid due to undue influence and due to the person being incapacitated at the time of the new will being drawn up. So my first question concerning that bit, is this person still name as the executor or is the grant of probate on hold until it is determined if the will is valid or not? Next, upon Land title checks by the lawyer the owners name is still on the property and not this person who applied for the grant of probate. Can this house even be sold without this being transferred and just using the excuse that he is the Power of attorney for a person that is passed? This person also has not filed with Land titles that they were the power of attorney. One of the reason this person had the will changed for there own financial gain, they have not opened up an estate account yet and they have been renting out the house for large sums of money and taking the funds to cover his expenses of the estate, like the filing for the grant of probate, plus other expense that he just got ordered to provide accounting for but it was on a hand written piece of paper that had black marks all over, it has no receipts and just states this is what he collected for rent. It also states the he is charging a 3% compound interest monthly and this is why the rent is not covering the expenses of the estate. This has been going on since 2011, the residual beneficiary has to keep going to court just to get any information, including he had to go to court to get the will handed to him. This person claims because they filed they can do what they want, they supposedly has sold the house with no transfer of title and sold under the power of attorney. The beneficiary is getting fed up with this person switching back and forth with the paperwork depending on what asset he is getting rid of. The beneficiary is also upset that the person is one minute power of attorney and next minute executor at whenever he feels it appropriate. No one has seen the Power of attorney paperwork due to when it fits this person convenience he states that she was never incapacitated yet she was when she was alive(deemed by two doctors). Does anyone check out if a will is being contested when a house is being sold, like real estate, lawyers, land titles etc? I read above that the executor has to have it in there name before they sell, so how can real estate paperwork be signed as power of attorney when she has passed since November of 2011? I thought this is fraud to represent something you are not without proving it? I also did not think this person could also move a family member into the house to keep care of it and allow them to live in one of the rooms rent free until the house sells to keep an eye on the tenants. This person is taking 20% of the rent as well as living rent free to help watch the tenants. It is the executor(power of attorney)'s son that is doing this for his father. All of this is happening in Alberta. This is just a small portion on what is going on with this estate. Please answer for me, I could not find any thing in your blog addressing these issues.

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  10. Hi Lynne,

    My father had an Agreement for Sale in place for his house and land. He died in December. The buyers have sent a letter saying they intend to go through with the Agreement and that we have 90 days to vacate. We are using a program called Executor Ease rather than a lawyer to file for probate. Today she said it will take 6 months for the probate to come through and that we can't sell the house until it does. The buyers want to put in a crop this spring. Do we have to wait until the probate goes through before selling, even though my dad had the Agreement for Sale?

    ReplyDelete
    Replies
    1. Six months for a probate to come through?? That is just ridiculous. It should be more like three weeks once the documents get to the courts. I'm not familiar with the program you're using, but so far I'm not impressed.

      You can honour the agreement for sale, though the title cannot transfer until the probate has been granted.

      If I were you, I'd consult a lawyer who does a lot of real estate. He or she can set it up with trust conditions to protect you, while allowing the buyers access to plant the crop. The purpose of the trust conditions is to allow everyone to get out of the agreement with a minimum of damage if for some reason the probate cannot be obtained.

      Lynne

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  11. Question? There are three beneficiaries to a property where one of them is intending on purchasing the home and has put in a formal offer. One of the beneficiaries has responded who is also the Executor of the Will but the other has not and the offer has now expired. The Beneficiary who wants to purchase the house still would like to move ahead with the offer and the other (Executor) is on board and would like to come to an agreement as well. How long do two of us have to wait for the third to respond or not. Is there a section in Estate Law that allows us to move ahead without the third who is not complying with timelines. The house is not being sold to pay any bills and needs the written ok of all residuary beneficiaries. What options do two of us have to move forward with the sale of this house?

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    Replies
    1. Generally, when people simply don't respond (as opposed to stating an objection, or making a counter-offer), they bring everything to a halt. This just isn't fair to anyone. If the third person cannot be persuaded to participate in the estate, your option is to ask a court to allow the sale of the property without that person's involvement.

      Lynne

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  12. Do an Executor has a legal rights to sell a property or reach an agreement to sell a landed property under a Will without a grant of probate being obtained from the court?

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    Replies
    1. This is exactly the question I answered in my post.

      Lynne

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    2. Hi Lynne, please I will like you to explain more about agreement to sale base on property under residuary estate. I am a law student here in West Africa. I will like to follow with your online lectures

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    3. Hi Lynn.
      My Dad bought my grandfather’s house after he passed away and the siblings split the sale proceeds. Trouble is they did it without paying off the final probate tax. I’m pretty sure this is illegal. Any thoughts on this?

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    4. In order for your grandfather's house to be sold after he passed away, someone must have signed the title on behalf of your grandfather. Legally, this must have been an executor or a court-appointed administrator. That person is responsible for paying the probate tax before splitting the proceeds. If that person is not able to persuade the beneficiaries to return enough money to pay off the probate tax, then he or she should expect to be pursued personally by the government for that amount.

      Funny how people always think the rules don't apply to them.

      Lynne

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    5. Thank you for your reply Lynne. Most kind.

      Long story short - My Grandfather and Dad had a joint bank account, so the account did not form part of my grandfather’s estate. When Grandfather passed away, of course the account became my Dads and his alone. They were advised by the bank that this account did not form part of Grandfather’s estate and it was up to my Dad to change it into an estate account if they wanted to. They decided not to and my Dad held on to the account and offered to pay any bills as necessary from it.

      Unfortunately, my Dad suddenly passed away last year and because of that, the account formed part of his estate. My brother and I (as co-executors) did not know that it was a joint account and that it was to become Dad’s. Literally days after he passed the siblings were trying to get us to transfer the account over to them (keeping in mind we had no idea it was a joint account until the bank told us). We thought they were getting us to transfer over permissions to act on an account that still belonged to my grandfather.

      We were told rightfully by our lawyer and the bank that we cannot transfer the account because it is our Dad’s estate property. The siblings then launched a blistering attack against us claiming that we were morally wrong, and are wrong to claim money that belonged to our grandfather ( we since learned that his intention was to leave it to our Dad all along according to the bank). They now claim they cannot pay the final probate tax at all because of “what we have done”…. It turns out they divided the house sale proceeds and left the estate open!

      I’m sharing this with your readers in hopes that someone else will not be taken for a ride by family. I encourage all to get qualified legal help with all probate matters. Do not attempt to do it all yourself.

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  13. recently my aunt died leaving only a holographic will naming her brother (my father and only closest surviving relative) as executor and beneficiary.
    we have started the probate process but as my father is also ill i have taken care of alot of the leg work including cleaning out and listing the home.
    my question is can we list the house publishing a probate clause on condition of sales while we wait for probate

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  14. Hi Lynn,

    If I buy property (condo) that is under probate, when I can obtain mortgage?

    Also if I move in do I need to pay for maintenance fees plus property taxes plus interest on deposit (or sale price?).
    Thanks

    ReplyDelete
    Replies
    1. You have to wait until a) the probate is granted by the court, and b) the executor then transfers the property out of the name of the deceased and into the name of the estate.

      The question about payment of those fees is best asked of someone who practices real estate law, which I haven't done in close to 30 years.

      Lynne

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  15. How common is it that the executor to an estate will not give copies of the will to beneficiaries, and the executor said he put the will in probate, sold the home, and the estate office has no record of this will being filed

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  16. As with all real estate I've looked at, generally you list your house higher than what you will except. This is for marketing purposes.
    We have priced the house at $200,000 thru the probate documents. I have been told we can not list/advertise the house higher that $200,000. Is this correct?

    ReplyDelete
    Replies
    1. No, that's not correct. That rule wouldn't even make sense, since property values go up and down all the time. List it for whatever you think is appropriate, and get the best price you can for the estate assets.

      Lynne

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  17. Hi Lynne, I am looking at buying a condo and sellers say I can not buy until after June 30th as that is when Probate will close...problem I have is my current home I sold closes June 15th so I need to move in before probate. Now agent tells me I could rent the unit since it is vacant until probate closes...do you have the proper wording for a purchase clause I could use in this case?

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    Replies
    1. The sellers are correct that they cannot transfer before they have probate, as until that time, they can't sell a condo that they don't own. They are also correct that they have the option of renting out the condo until they can sell it. I'm sorry, but I cannot give you specific wording, as I'm not in a position to advise you on your situation. I don't think any lawyer would give advice on specific wording without being able to see all documentation and get all necessary details.

      Lynne

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  18. Hello Lynne my folks passed away their are 3 of us as benaficiares one of us is executor allso my mom said in the will that every thing is to be equally split three ways there's 2 account's that are not in the estate my sister split the one account 15 grand but the other one she won't split up 54 grand what can I do?

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  19. Lynne I NEED YOUR HELP!! My mother (who is still alive) owns a home in texas. Resident for past 20+ years. She is now 84 and my little sister has moved her (unannounced to her other three kids) to Oklahoma Nursing home. She has been in this place since March of this year. I found out that the home in Texas has been put on the market. My older brother is executor of the will and my older sister has POA. Neither of them have been notified by my little sister, or the Nursing home on the condition of our mother. I have not read the will , since I'm not Executor, but my question is this-If the home is listed in the will as an asset to beneficiaries after Death. can it be sold Before Death and money kept to seller? Our little sister has vowed to "take it all" as she puts it, so there's nothing left for the remainder of the siblings. We have continuesly called Mom , but she either isn't taking our calls or someone is keeping them from her. Also would like to ask, If there has been a NEW WILL made, would the old Executor have to be notified of this, and are there any legal ways that we can keep this home from selling to just one of the kids? Looks like it's going to be a bumpy road ahead, just getting some information because I'm going to have to hire an attorney on these issues. Any information that you can send my way, I would greatly appreciate, My heart will appreciate it too!! Thank you for your time

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  20. Hello Lynne, Need your help, as I signed a purchase agreement for Condo in Toronto ON and it was a estate sale. The seller had applied for probate on APR 9 and closing was supposed to be on JUN 21. So far seller haven’t received a probate. Since its more than 2 months now and I know probate shouldn’t take that long. How can I follow up as a buyer ?

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  21. as a buyer to buy a Estate property,what should we be careful or be caution in the sale agreement.just want to protect our own right.-make a offer,deposit,and then wait for couple weeks and pay the rest of money after executor got the probate order.

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    1. Hi Elsa,
      The only thing that is specifically different between a regular sale by the owner and an estate sale by the executor is that the executor MUST have a grant of probate (or other court order) before selling. So just make sure that your sale agreement shows "the executor of the estate of X" as the seller, and not the executor in his or her personal name as the seller. Your lawyer will probably ask for a copy of the grant of probate, too.

      Lynne

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  22. Hello Lynne,

    I am about to buy a property from the executor.
    His mother left the property under his name as executor which is now changed to his name.
    He says, the title is under his name, however the Seller's name should be "The Estate of XYZ (His deceased Mother)).
    What should come on the title for the sale..
    Please help!
    Thanks,

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  23. If a person were to pass away suddenly with no legal will (just a typed up letter only signed by the one who wrote it) no kids and no partner/girlfriend. In the process of getting the signature verified. The mother of the person who passed away is selling and pawning his property (until the rest of the family decided to change the house locks) is that legal? Could the mother be in legal trouble?

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    Replies
    1. Yes, the mother could definitely be in legal trouble. She does not have the right to sell or pawn other people's stuff.

      The letter you've mentioned may or may not end up being a will. I couldn't say, since I haven't seen it, but it's possible. If it is, the person named in it should apply for probate as soon as possible.

      If the letter will not serve as a will, then someone in the family needs to step up and apply to the court to be appointed as administrator of the estate. Again, this needs to happen quickly as it appears that there is at least one person in this family who is already behaving improperly.

      Just one caution here. It is quite possible that the mother thinks she has the legal right to deal with the property. Again, I don't know because you haven't said what she has done with the money or what is in the letter. Plenty of parents think that the status of parent conveys all kinds of legal authority that it does not, so make sure you cut her some slack if this turns out to be a misunderstanding.

      If this is something you need help with and you want to talk it over with me, you can call my office at 709-221-5511. I charge $250 for a consultation if you don't want me to do any further work.

      Lynne

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  24. The letter states one person to get his estate. We applied for probate and to be administrator.Thank you for the advice.

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  25. Hi there,
    My mom recently passed away. In her will she left her house to her estate. I am the executor. The lawyer's office where my mom had her will pulled the Ontario Land Registry abstract and the law office told me because the title was made before a certain date, the will does not need to be probated for the sale of the house. We have someone interested in buying the house, as is, and they will pay our legal fees, without agents being involved. What is my legal obligation to do with the sale of my mom's home? After reading all of these posts, I fear I have been given some misinformation from the law office. The buyers have offered to give us up to March 31 as a closing date but as you may guess, we would like to see sooner rather than later.

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  26. Hi I have finished private in BC and wondering, what is the next step to sell the property? I am the only executrix. Do I have to go through land titles to change the name on the property from my mothers to mine before I list it?

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  27. Good Day Lynne

    I am contemplating purchasing a detached house listed on MLS in Canada. The owner is recently deceased and his son has officially been granted probate - the Property Title now shows the son's name (as executor) as the owner. Pre- my making an offer (I'm worried:-) I can't seem to get a concrete answer from Realtors involved as to whether or not complications can arise if family members contest the will after a sale is complete - can the property be clawed back from the buyer for example via the courts if the contestant is successful?

    thanks

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  28. hi, can you explain why appraisals are required for probate? my mother has a large rental apartment complex which I own 25% of, the rest is willed too me, also can I receive 100% of the rental income prior to probate, thanks

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    1. Generally speaking, appraisals are needed to keep executors out of trouble with beneficiaries and Canada Revenue Agency. As you are apparently the only beneficiary, some part of the risk may be reduced for you, depending on what else the will says. Executors need to know the real market value of properties even if they are not being sold, because that value is used to calculate capital gains tax, probate fees, etc. You don't want to be over-charged for court fees, but neither do you want to have CRA show up to investigate because the value was too low.

      I think the second part of your question refers to the period of time between your mother's death and the probate being granted. If so, then no, the rental income doesn't belong to you until the property is in your name, which it will not be until after probate is granted. Before then, it goes into the estate, where it is available to be used for payment of estate expenses and taxes.

      Lynne

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  29. hi, my father is 1% owner of my condo, this was done to obtain a better bank rate years ago, can this property be sold by me prior to probate? is it true that land title office will not transfer property name without probate release? thanks

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    1. Ok, so I'm assuming that your father had passed away. Whether or not you can do anything at all depends on whether you're the executor, since nobody else has any right to deal with a deceased person's property. Assuming that you are the executor, you can list the property before probate, but you will not be able to transfer it without the probate. Yes, this is true. It doesn't matter that it's only 1%, or why it was done. It only matters that his name is legally on the title, and cannot be removed without the probate judge's ok. As I always say about land titles arrangements, they are easy to get into, and tough to get out of.

      Lynne

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  30. hello, lets say for example, there are 4 apartment buildings in the estate,who does the appraisals. can an real estate agent who specializes in apartment buildings give his estimate of market sales value for each building and would that suffice, is there a legal requirement for appraisals for probate,and if there is obviously sufficient funds in the estate to cover any taxes, can an executor sell a building after probate with no appraisal, thanks

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    1. Appraisals on commercial buildings are usually done by a certified appraiser, as opposed to a realtor. An appraiser is a neutral third party who is paid for the appraisal work but has no stake in the value of the property. Realtors have a vested interest in the value of the property being as high as possible because on sale they receive a commission.

      There is no legal requirement for an appraisal. An executor may choose to sell a building without one. As usual, it's not a matter of "can" he sell it, but "should" he sell it. The downside to that is if any of the beneficiaries believe the property has been sold for too little, the executor has nothing to back him up. If it ends up in court, the executor is not in a strong position. If the court agrees that it was sold at too low a price and the executor has no back-up, he may end up paying the difference out of his own pocket.

      Every executor has to weigh the risks of his options and just make the best choice he can under the circumstances.

      Lynne

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  31. hi, if an estate has properties, and cash, bonds and stock, how soon can cash be distributed by the executer. assuming the real estate holdings will cover any future tax and fees, can an interim distribution of some cash be made immediately, thanks

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    Replies
    1. An executor can, theoretically, distribute part of an estate as soon as funds become available. However, there is always risk involved for the executor who distributes too much too early. If, as you say, there is enough income to cover future expenses, and cash flow for ongoing estate administration is not a problem, the executor may choose to distribute some cash. It's never a matter of "can" an executor do something; it's always a question of "should" an executor do something.

      Lynne

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  32. if i'm the trustee of the estate, does not the executor have too follow my wishes regarding the sale of assets, as long as what I want to do is legal, I guess my question is who has the power within the system, thanks

    ReplyDelete
    Replies
    1. I assume from the wording of the question that you are not also an executor, and that you will be administering a trust that is set up by a will.

      The roles of executor and trustee can be, and should be, clearly separated. Your job begins once the executor has dealt with the estate and has set up the trust. Then he hands it over to you to look after according to the terms of the will. This means that he does not have to follow your wishes while he is dealing with the estate, before he hands the trust to you. Similarly, once you start looking after the trust, he can't tell you what to do.

      Lynne

      Delete
  33. Hi. Lynne
    My father just passed away recently, he froze to death in an unplowed road in rural Manitoba.
    I am in BC and found out about this through his power of attorney.
    I have not seen a will or a death certificate, but have been told by his power of attorney that i am the beneficiary.
    The power of attorney would like me to sign a paper with a lawyer giving him the executor rights, perhaps this is the right thing to do since I live in BC.
    I just recently found out that my Dad had set up a joint bank account with his sister, and that his sister has a will.leaving everything to my cousin.
    My Dads sister has been in a nursing home for the past four years, she has alztimers.
    I'm certain that my Dad set this account up as a matter of convenience, as he took care of her for years before admitting her to a nursing home.
    I was informed by my Dads power of attorney that the money in the joint bank account will go to my dads sister and my cousin will inherit this money.
    Mean while i am wondering about the estate bills that have to be paid, is this account still responsible to pay for those bills.


    ReplyDelete
  34. would you clarify the role of trustee, does named trustee in the will mean the estate is "in a trust", and if there is no specific executor named in the will, does that mean the trustee is also the executor by default, thanks

    ReplyDelete
  35. Hi Lynn, my grandmother passed 6 months ago, after being in a nursing home for 10 years. Her condo has been sitting with her belongings, and now needs to be empty and sold. An executor is holding up emptying the contents due to not knowing if the items are of any value. Who could she contact to view and appraise and sell any potentially valuable items? Thank you. Also, how can privately owned environmentally protected land be sold? Are their any stipulations to this type of property? Thank you again!

    ReplyDelete
  36. Hi Lynne, thank you for the time you take answering everyone's questions. My father passed away suddenly 5 weeks ago and the will is going to probate. It has not been filed yet. My questions are the executor is being told that he cannot pay any bills by the bank until he has a notorized will. Is this different than being probated? No bills have been paid to date and no non essential utilities have been cancelled. My other question is the family is being told we cannot enter the house at all and do any packing of personal content or repairs on the house in anticipation of selling when probate is received until the will is probated. The executor was told by the lawyer no one could enter the house. Thank you for any answers you can provide

    ReplyDelete
    Replies
    1. Yes, a notarized will is different. It just means a photocopy of the will that is verified by a Notary Public to be a true copy. You can get the lawyer for the estate to make a few notarial copies. This can be done quickly before the will is even sent for probate.

      I agree that nobody can enter the house. I tell all of my executor clients to change the locks on the house and keep everyone out. The house and contents are now the responsibility of the executor, and if anything goes missing, the executor is personally liable for it. Nothing can be taken from the house without the executor being there, and nothing should be changed or repaired unless the executor requests that it be done.

      The house and contents do NOT belong to the family right now. They belong to the estate.

      Lynne

      Delete
  37. Hi Lynne. I'm a Realtor and have a listing coming up that will be subject to probate. It is my client's Uncle who has passed away. Currently his wife is Executor, but they are changing that as she is not capable of handling the sale. So the client I'm working for in not Executor yet. How should my client sign the listing documents, and is he even legally allowed to list the property at this time?

    ReplyDelete
  38. Hi Lynne, my mother passed away and left a property (in Ontario) where only her name is on the property. My step-father left the property (after she passed away) and I'm left making mortgage payment as well as utilities and maintenance payments until I can sell the property.
    5 months after he left the property, he had a lawyer put a "note" saying that when we sell the property ,he wants to be notified as he claims it as a marital property (he has been working for the past year, beforehand he hadnt been working for 17 years and did not contribute to mortgage payments etc...)
    I feel that he abandoned the house.
    My question is :
    - Is he legally entitled to anything since he abandoned the house ? (he bought a new property for $630,000 after he cashed in my mom pension and her work life insurance)

    I tried as much as I could to leave the emotions out and to focus on the facts.

    Thank you,

    ReplyDelete
  39. my grtandparents sold me the house before they passed can anyone come after us.

    ReplyDelete
    Replies
    1. Hmm. Just the fact that you've asked this question makes me think there is more to it than meets the eye. If someone sold you a house legally and all above board at fair market value, why on earth would anyone be able to "come after" you? People are allowed to sell their homes. On the other hand, if there was something not quite right about it - say pressure to sell or an unreasonably low price - then maybe someone can "come after" you. Is there something specific that worries you about the sale?

      Lynne

      Delete
  40. Hi, Lynne

    I signed a document making a friend of my father the executor of his will, because I live in British Columbia, and the property is in Manitoba, I was told either I have to go there to execute the will or make someone from there the executor.

    Now

    I have been sent another document from the lawyer asking me to sign it which renounces all my rights.

    The lawyer sent me an email stating Im following the procedure outlined by the Deputy Registrar of the Manitoba Queen's Bench Probate Division. You will have to trust me on this or we will never get it finished.

    This is a simple will, and I am the only beneficiary stated in the will, there is a joint bank account between my father that goes to the survivor which was his sister, but the survivor passed away a month after my father did.

    I am wondering if this is why the lawyer wants me to Sign this.

    I have been to the notary, and she did not know anything about this kind of document, so at this point I am having second thoughts,about mailing it out.

    It sounds like I will loose out, please help me to understand what I should do.

    Thank you

    ReplyDelete
    Replies
    1. You are being asked to give up all your rights... to what? To your inheritance? To the joint bank account?

      If it's the joint bank account, that makes sense. If the joint owner outlived your father, then she gets the account. In this case, her estate gets it. Most wills have a clause that says that someone has to survive them by 30 days, but I sincerely hope the estate lawyer has already taken that into consideration.

      If you are being asked to give up "ALL" your rights, i.e. to everything in the estate, that doesn't make sense.

      If this is something you'd like to talk to me on the phone about, we can arrange that. I'd have to charge you for the consultation, but at least you could email me the document to take a look at. If you want to, call my office at 709-221-5511 to set up a time to chat.

      Lynne

      Delete
  41. Renunciation of probate or of administration with the will annexed.

    The queens bench winnipeg centre


    I my name do hereby expressly renounce all my right and title to the probate and execution of the will and codicils if any of the deceased.

    What does this mean, it sounds like I would be giving up my inheritance.

    ReplyDelete
    Replies
    1. It means you are giving up your right to apply for probate. You said you wanted to do that because you live in another province. What you have shown here doesn't say anything about giving up your inheritance.

      Lynne

      Delete
    2. Yes I live in Vancouver, BC, and the estate is in Manitoba.

      I previously signed a document giving the executor to a person my father knew.

      I am just wondering if this a perfectly normal procedure.

      I was surprised when the notary said she didn't know what the paper meant.

      Its all good with me as long as I am still entitled to the inheritance.

      Delete
  42. Greetings,
    recently my close friend lost her mother to cancer. Both parents are deceased and the family home has been left to her and her sister evenly. Out of the kindness of my friends heart she allowed her sister to remain in the home for a year, since the property tax was paid in full and the mortgage was paid off. Now, two years later she wants to sell the home, split the financial gain down the middle and move on with her life. However, she has come to the realization that her sister has sold items within the home without her knowledge and has locked her out of two rooms, which she feels contain the personal items of her mother (dad died many years ago). Is she legally able to have these rooms unlocked (she lives in Ontario)? Her sister is currently unstable in the sense that she has become obsessed with the cemetery plot of her mother, not allowing for my friend to leave anything there or she removes it and has been spotted by many members of the community obsessively rearranging and digging at the grave site. She was initially struggling to simply sell the house, now she sees that her sister is hiding things from her and wants to know what her legal rights are within the home itself, can she force her sister to open these rooms?

    ReplyDelete
  43. Hi, Lynn

    I am wondering if the trustee can file an income tax claim, before the probate. Thank you for all your advice

    ReplyDelete
  44. HI Lynn . Thanks for your guidance.

    My Question is .. what will be sellers name in listing agreement to sell. MR ABCD deceased leaving will for MRS ABCD..Probate orders are being processed.. In listing ..Sellers name would be ESTATE OF MR ABCD through Trustee MRS ABCD or something else. Please suggest

    ReplyDelete
  45. I was just in the middle of purchasing a house (which was supposed to close in 4 days) and got a call from my lawyer today that said Probate hasn't been done on the property. The seller NEVER told the agent about this.
    Plus throughout the sale and inspection the seller didn't disclose many broken items like a 3500 awning that was broken and said they had someone coming to repair the patio but couldn't give me a name...needless to say the said repair person never showed up. There appears to be efforts to hide important information.

    I'm tempted to walk away. Would I be liable for anything if they can't get probate done in time for closing? (I'm told houses in my area can be sold without probate but I'm not very comfortable with that!)

    ReplyDelete
    Replies
    1. Houses CANNOT legally be sold without probate. I assume you heard that from a realtor who is anxious to close the sale (based on my own experience with realtors who have told me several things that are legally completely wrong). It can't be done for the simple reason that the house belongs to a deceased person who isn't there to sell it an the grant of probate is the proof that someone else has the right to sell it for him.

      I can't really help you with respect to the other matters as I don't practice real estate law. Can you not get advice on this from the lawyer who is handling the purchase?

      Lynne

      Delete
    2. Hi
      Lynne
      Nice information page you have here and spent some time going through a few pages.
      I have a question with an partial estate meaning I and brother and my mother own the house as 3 equal shares. My mother passed away recently and now have a total of 6 Beneficiarys. Question Are we required to get an appraisal of the home to share the 1/3 of my mother share or if all 6 parties agree to a value expl 200k that 1/3 share and then divided based on that agreed amount, such as I pay them and I keep that 1/3 share. or are we required by law to get an Apprasial. thank you

      Delete
  46. Dear Lynn, thank you again for all your help to all of us! I read so much but at times get confused lol.
    Do I or don't need to wait for the mail from vital statistics - Wills Registry (have waited 3 weeks this far) of the Will Search prior to taking the paper work to the probate court?

    Did I understand correctly the estate home can be put up for sale, (of course sale doesn't end until probate & clearance certificate are in hand)
    As of August 2016 New Westminster Probate Court is 12mths behind & Vancouver is working on May's

    ReplyDelete
    Replies
    1. My understanding of BC probate procedure is that the response from the Wills Registry is required to be a part of your application. Therefore you have to wait for it.

      Yes the house can be listed before probate is granted but as you say, the title cannot change hands until the probate process is complete. So be careful when you list the property.

      I am appalled that the probate court is a year behind. I just can't imagine how hard that makes things on the beneficiaries and the executors. Here in St. John's, I usually get my probates and letters of administration in 2 to 3 weeks.

      Lynne

      Delete
  47. Thanks very much Lynne! Your awesome!
    Ya me too on the wait time.. Right I was going to cry.. As that means the extra time there's extra money going to paid out as strata & hydro etc. It's be harder to rent out when it's going to be sold, so I may just move in & it could use updated appliances etc. I think I can do that although I would have to get rid of everything in there of my dad's, as long as my Brother (co-executor) is on board & I already know all the creditors, they'll be able to get paid once its sold. Or am I completely wrong?
    I'm so grateful your doing this to help others! If you were here is hire you for consultation!

    ReplyDelete
  48. My dad died December 22, 2016 it took the lawyer till May 2016 just to apply for the probate, and then until August to probate the will,my executor is now trying to sell the vehicles and the property.

    ReplyDelete
    Replies
    1. Are you sure it was the lawyer who took so long? The lawyer can't file anything at the court without the information (e.g. names, ages, addresses, relationships, assets, debts, values, land descriptions, etc) provided by the executor. Not to mention that the executor is the one who actually has the will, and is the one who has to come in and sign documents. I've often heard beneficiaries bitching about how long the lawyer is taking, even when the lawyer is the one phoning and emailing the executor to try to get some co-operation. Trust me, the delays are more often the fault of the executor than the lawyer.

      Lynne

      Delete
  49. Hi, Lynne
    Yes the lawyer took along time also after signing, for probate and the executor.

    ReplyDelete
  50. When the probate forms are completed (typed/printed on computer) & I take it down to the courthouse.. Can things be added by pen or will u need to redo them ? i.e.in many it's asks which affidavit it is. I'm just not sure
    Also I believe it's $200 to file, but do you need to pay that each time you go & are sent at to fix errors? Or only once the clerk accepts them?
    Thanks

    ReplyDelete
    Replies
    1. Cherie, I believe the clerk of the court will allow you to make small changes to documents and initial the changes, but not always. If the document you want to change has been sworn before a commissioner for oaths, you cannot change it without the commissioner re-swearing it. If it's not a sworn document (or a schedule to a sworn document) then you would probably be able to write in something small. As a general rule though, you should expect to take them back and fix them.

      Once you file, you do not need to keep paying. It's a one-time thing as long as it's the same file.

      Lynne

      Delete
  51. Hi again Lynne
    Okay.. I just realized & of course a question arose. Re:"Can an executor distribute estate assets before getting the tax clearance certificate?"
    There's only thing really is the estate is a condo. The items in the home aren't worth much, and the only beneficiaries are my brother & myself, (we're co-executors). So the main issue is selling the condo, which will pay all debts, then divide the remainder n us.
    1.Do we actually (ugh) have to wait (months) for the clearance certificate before we can sell it?
    2.can i do the taxes as soon as I have the T5's? (like now basically)
    Here I thought we only needed to have probate cleared in order to get it in the market
    Thanks
    Cherie

    ReplyDelete
    Replies
    1. You cannot get, or even ask for, a final clearance certificate while the estate still owns property. You have to take care of the estate first, including selling property, and do the tax returns. THEN you ask for clearance.

      Yes, all you need is probate to sell the condo.

      Lynne

      Delete
  52. That's a huge relief on all your answers.. Thanks so much! Logic told me
    The same answers.. But with all this in so second guessing myself.. Can't go by but instinct with the courts.
    FYI on the wait times here.. New Westminster seems to have caught up a wee bit only 4 months behind & Vancouver is working on June (different times for resubmitted)
    Vital statistics said I should get the will search in the mail this week
    Fingers crossed!
    Cheers
    Cher

    ReplyDelete
  53. Hello there, my father in Newfoundland died around 5 years ago and at the time he wrote a will and left all of his possessions, money and his house to my sister and I in a will that stated that we receive everything and split it 50/50. My father has a wife, she moved away from Newfoundland around 15 years ago or more and she has had limited interaction with my father during that entire time. Around July she tried to sell the house and land to a man via email interact and she did not tell me about it. I am wondering what the precedent for something like this might be since the law does grant certain ownership rights to the marital home but since she has been gone for such a long time do her rights become void? I want to know if I should try to get my fathers will probated or not and fight her on this sale. Thanks

    ReplyDelete
  54. I am executor for an estate and need to sell a house. Because of notification requirements I will not be able to apply for probate for three weeks. Can I list the house now, subject to being granted probate?

    ReplyDelete
  55. Unknown..as Lynne had explained to me previously.. We can list it but yes it has to state subject to probate. My son-in-law is a Realtor & does list properties with this subject often

    ReplyDelete
  56. Hi again.. I'm about ready to start all my probate forms.. Hopefully I'll get them right the first time!
    Question:my understanding is that we (the 2 executors) could rent out our Dad's condo (yes it's allowable via strata by-laws) I learned I cannot live there myself unless I pay rent (kinda doesn't make sense but does) how can we rent it out when it's not in our names? My thinking is that the babe of the landlord would be "The estate of" but I'm just not sure about it all
    Both Probate Courts are about 4mths behind.. So like it's going to be about 6mths before clearing probate. That's 6mtgs of Strata fees.. Ugh!
    Suggestions? Thank very much

    ReplyDelete
    Replies
    1. It is in your names as executors. You have the authority to deal with all estate assets.

      Lynne

      Delete
    2. We're the Executors so I guess no its not in our names UNTIL it clears Probate, then we do the transfer of all assets to our names, correct? So I guess that's a'no' we can't rent it unless it's in our names!
      Thanks
      Cher

      Delete
    3. You CAN rent it out. As executors, the property is in your name (as trustees, not owners, but it is permitted for a trustee to rent out a property).

      Lynne

      Delete
    4. Oooh thank you thank you.. I had thought that you'd said that somewhere previously.. But it's so easy to get confused.
      My SIL the Realtor just said last night he's done these fairly often & if offer accepted the buyers could move in & rent.
      Think we'll go that route. Users of getting to get actual tenants. More worry of temp renters following the by-laws of the strata(my way of thinking)

      Delete
  57. We gain possession soon, but the house is still in probate, so the completion date may be well after the possession date.

    What kind of renovations can we do while we wait? We aren't owners, but we aren't tenants either - I'm not sure where we land.

    I assume anything that needs a building permit is off the table, and I assume painting and maintenance is fine. But what about things like ripping out carpets, taking wood panelling off the walls, or installing a fan in the bathroom?

    ReplyDelete
  58. Lynne
    If I wanted/needed to have a consultation with you, is that doable?
    I couldn't find how to email you
    Is only consult regarding who completes which form with the probate forms

    ReplyDelete
  59. My father passed away over 30 years ago, leaving a good sized property with 2 houses - my mother was one of the trustees. He also made provisions for her to remain in the family home until her death. Soon after his passing, she spent a considerable amount of money building a new, large mansion, putting in a pool, and extensive gardens. Probate was granted way back, but my mother in the home, as did other beneficiaries, until over a year ago. She suffered a stroke and must be in a full care facility. Can the property now be listed and sold? It is on two separate but adjoining lots. The only other trustee is has been absent and delinquent for several years. No alternative has been appointed.
    ALSO - if one beneficiary is occupying the big house, can the others remove them - for no reasonable cause?

    ReplyDelete
  60. my father passed away in June. His brother transferred the property into his own name for a nominal sum a month after my father's death. He then sold the house to my cousin. My uncle did not file probate and is refusing to even let us know if we are beneficiaries of the will. What gave him the legal right to transfer the property to his own name and then sell it?

    ReplyDelete
    Replies
    1. If the property was in your father's name only, there is nothing that would have given him the right to transfer the property without probate.

      You need more information. I suggest you start with the Land Titles Office or Registry of Deeds. Do a search on the property to verify several things including: whose name is on the property now, when it transferred, the amount for which it was sold, any documents supporting the sale. This is where people sometimes find out info such as the house was actually put into joint names while your father was alive, allowing your brother to transfer it to himself. It's worth a search.

      Are you absolutely sure he did not apply for probate? Have you done a search at the probate office under your father's name?

      If you find out the house was in your father's name and there was no probate, get a lawyer to look over your documents because there could well have been fraud involved.

      Lynne

      Delete
  61. Hi, Lynne

    I left you a huge post last time as I was just explain my side.

    I have a question maybe you can answer, I am wondering since my executor tried to coerce me into selling the house to someone at a low price and said he would go to the lawyer and say he wanted to resign if I didn't except her offer.

    What are my alternatives, should I wait and see what happens next.

    Can he sell the house, can I keep the house.

    How do I determine what to pay the executor in this situation.

    ReplyDelete
    Replies
    1. As a general rule, if it takes a "huge" post to ask a question, a blog is really not the best place for you to be looking for answers. There is way, way too much even in this short post for me to try to answer. When a situation is this complicated, you really need to sit down with a lawyer who can spend an hour or two talking it all out with you.

      Lynne

      Delete
  62. Hi, not sure if you can answer this or not... My mom passed away last May. After getting all the info required for the lawyer, he made some ammendments to her will. Just awkward wording... It was sent to the courts for probate early July. The beginning of October our lawyer called and told us probate was sent back due to one word which should have been husband, not wife. Our lawyer said they didn't think it would be sent back over an obvious mistake. That was them ammended the same day and sent back. I was told that our paper work would be placed "at the top of the pile" since it was already looked at, and should take a week. It's been 5 weeks now. Does this seem correct what I have been told? This lawyer will be getting about $12,000 from this estate, and I am kind of worried. Thank you for your time.

    ReplyDelete
  63. The only estate asset is a condo that pursuant to strata rules can't be rented. The deceased was paying mortgage and other costs. If not sold the bank will take it. This doesn't make sense. Is there no way around this rule if foreclosure and loss of asset is inevitable?

    ReplyDelete
  64. We completed sale documents on a property through a realtor, and found out 10 days before the closing that the sellers had not even started the probate process. Now we have serious concerns. Our realtor says ''this happens all the time'', but it just feels wrong. It was never mentioned to us that there would be a delay in the closing date, or that there was an issue with probate. What is our recourse? We want the property, but now have to re-do the mortgage papers (potentially at increased rate), will have to request that we can stay at the property we are currently in, get new quotes for insurance, etc. We are at wits end!

    ReplyDelete
    Replies
    1. I certainly hope that does NOT "happen all the time". The realtor is saying that because he/she doesn't want to lose a sale, but you need to look out for you.

      What on earth was that executor thinking? Sure you can list the property before probate is actually received, but not when you haven't even started the process! It is most likely going to be weeks, and could even be months, before the probate order is issued. If they had all information at hand and got it signed up and filed at the court within a day or two, they would still expect to wait 4 to 6 weeks for a probate order to be granted. If they haven't even started yet, it will be longer than that because they still have information to gather from sources such as banks, employers, pensions, government, etc.

      I would also find in your shoes that it feels wrong. Absolutely anything could happen from here. The will could be found to be invalid. There could be a claim against the estate that causes litigation. The executor might not file for probate, or might die, or leave town, or a hundred other things.

      Check your agreement for sale. If it was done correctly, the obtaining of a probate order will be listed as a "subject to". In other words, the deal will only go through if the probate is granted by a certain date. Obviously it won't be, so you should be able to back out of the deal without penalty.

      Beyond that, you should consult a lawyer who specializes in real estate, which I don't. It doesn't seem fair to me that a person (in this case the executor) agrees to "subject to" items that he knows damn well are not going to happen because he isn't doing what he needs to do. That feels like fraud to me.

      Lynne

      Delete
  65. My mother died 3 years ago leaving my father as executor and beneficiary in her will. I was listed as an alternate executor if my father could not act as executor. My father did not change the deed and continued to use his joint bank accounts, so basically he did nothing to show she was gone except file a income tax form. Now he has died and I am his executor. Do I need to first probate my mother's will to transfer the deed to my father and then later probate my father's will? Or can the two be probated simultaneously?

    ReplyDelete
  66. My parents passed away and my sister and I were left with 1 share each. My bother was not named as a benefactor but his name is in the will. My sister is the executor of the will. The only asset in the estate is our parenta property. We have a huge problem with this. There is the matter of a cleanup bill that needs to be done. Buildings and asbestos and other stuff has to be removed. The town has been asking for it get cleaned up because it is an eyesore. There is no cash available for the cleanup. My parents property which i almost 3 acres has valuable trees on it possibly few hundred thousand. Can the trees be sold so that the money from the sale go directly into the estate for cleanup of the land before the will is probated. The estate is located in British Columbia. I sure could use some guidance here because I live in Ontario. Can a lawyer help me here in Ontario?

    ReplyDelete
  67. Lynne, all documents were signed to sell a mothers house by her power of attorney. The mother passed away one day before close. Does the sale now need to go through probate? It is an Ontario property.

    ReplyDelete
  68. A daughter signed for her mom through power of attorney to sell a home. All documents were signed at the lawyers office. The Mom died one day before close. Is probate still required to close? It is in Ontario

    ReplyDelete
  69. Lynne,
    Estate is in probate, I want to sell the house during the probate process which I understand I can do, am I entitled to the money from the sale of the house during the probate process or do I have to wait until probate is cleared before I am entitled to collect from the sale of the house?
    Thank you,
    Mark.

    ReplyDelete
  70. Hi Lynne
    My mother and her ex-husband bought the the house I'm living with my two siblings about 16 years ago. When they got their divorce we bought him out of the mortgage and paid off the old debt, but because my mom couldn't get a mortgage for herself my brother had to go on with her as joint owner. Now my mother past away and I am her executor of her estate. She asked that everything be split equally between us. So now I have everything but to sell the house and I want too. Her lawyer said I didn't need to probate because my brother is on the house deed and this lawyer is the one that dealt with all the paper work from when the house was first purchased as well as he is the one that did the will. He told me and my brother to come and sign papers to get her name taken off the deed. My question is how will I be able to sell the house and split it equally if her name gets taken off? Wouldn't that mean my brother fully owns the house then? Would I be able to transfer my sister and myself on the deed without the probate?
    Please help my mother died young and I don't have any help in canada.

    ReplyDelete
  71. Hi there. We have a dilemma here in Ontario that goes like this. A man showed my husband many papers saying that he was in said man's will to recieve property and money after his death. The man's sister took power of attorney and had the man institutionalized shortly before his death. Wuestion is this , if my husband had no copy of the will and no proof , is it legal for the sister to take everything and sell out without notifying my husband?

    ReplyDelete
    Replies
    1. When a person is named in a power of attorney (assuming it's an enduring one and is properly sprung into effect) then the person appointed has the legal right to assume control of all of the assets, paperwork, business etc.

      I think though, you suspect that this sister is aware of the gift in the will and is ignoring it. Is that what you mean? If so, then no she cannot change what is in her brother's will. The issue is, as you've said, "no copy of the will and no proof".

      It's possible that the man changed his will after he spoke to your husband. It's possible that his will wasn't valid if he didn't have the mental capacity to make the will in the first place. So, there is next to nothing for your husband to rely on in terms of his legal position.

      Has your husband communicated with the sister? Is she also the executor of the man's estate? It might be an idea for your husband to contact the sister in writing (even better, have a lawyer do it for him) and ask for written confirmation that your husband is not a beneficiary of the will. Very few people are willing to lie outright on paper since that can be used against them.

      In the absence of any proof at all, your husband is unfortunately going to have an uphill battle.

      Lynne

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  72. What if the beneficiaries do not agree on selling at this time?

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    Replies
    1. I have no idea what "at this time" refers to. I don't know whether the property you've referenced is a home, a cabin, a commercial property, etc or who owns it now. I also don't know why the beneficiaries need to agree when it's not up to them. So, basically I need something more before I can give any kind of relevant answer.

      Lynne

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  73. I am on the other end of this. I am living in my deceased parents home. The house was left to my sister and myself. I pay for the taxes, insurance and maintain the home. My sister would like to sell the home but I would not. Can she kick me out? I should also mention the will has not been probated yet.

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  74. My mother had her house in her name and mine,done by a lawyer 2 years ago..she passed away a few months ago and was wondering if I can sell the house which has no mortgage .Does the executor have any say at all .

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    Replies
    1. Though this seems a simple question, the answer isn't simple. I would need more information. Are there beneficiaries of the estate other than you? Did your mother say anything in her will about her intentions for the joint property? Perhaps she discussed with the lawyer WHY she was adding your name?

      The issue you are faced with is that when a parent adds a child to an asset, on the death of the parent the asset is held in trust for the parent's estate until evidence can be found of the parent's true intent for that asset.

      So, the bottom line is that the executor probably does have a say in it. A lot of say. Without more information I couldn't be more specific.

      Lynne

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