October 21st - 2003

Estates: The basics

An experienced REALTOR dealing with property owned by a deceased person, in other words an estate sale, will know that there may be concerns in connection with the authority of the seller

An experienced REALTOR dealing with property owned by a deceased person, in other words an estate sale, will know that there may be concerns in connection with the authority of the seller, rights of beneficiaries and creditors, whether the will is valid and who may be entitled to claims against the estate.
 

The knowledgeable REALTOR will also recognize that the legal complexities which usually surround an estate sale make it advisable to involve the estate solicitor, as well as the lawyer for the potential buyer, in the very early stages.

Whether or not there is a valid will, the ability to deal with the property of the deceased will require a court-issued certificate authorizing one individual to assume this role. At one time, this person was called an executor in cases where the deceased left a valid will, or an administrator if an individual died intestate. However, as a result of recent changes in the applicable statutes, this individual is now called an Estate Trustee With a Will, and an Estate Trustee Without a Will, respectively.

The first step in the certification process is to determine the nature and value of the estate’s assets, which may require a valuation by a REALTOR or other professionals. The lawyer for the estate will then apply to the court and the certificate is usually issued  about six weeks from the time all required documents are filed. 

Until the court issues a certificate naming the estate trustee (with or without the will) no-one has authority to deal with the property by signing even a listing agreement, let alone an agreement of purchase and sale. There is one exception, which occurs when the property was held in joint tenancy by the deceased and another individual. (See box “Joint ownership.”)

Once issued, the certificate is registered at the registry office and the appropriate legal clauses, relating to the circumstances of the deceased, the nature of the property and the rights of a spouse or other beneficiaries, are inserted in the documentation.
To obtain more information, go to the members’ only section of the OREA website (www.orea.com) and download the legal pamphlet “POWERS OF ATTORNEY AND ESTATES.” Also check out “Legal Forum” to find answers to commonly asked questions on this topic under: Selling Properties, subtopic Estate Sales.

Joint ownership

Property in joint tenancy is outside of the estate and it is therefore not necessary to wait for the Certificate of Appointment to be issued. Once the estate solicitor has registered the appropriate documentation to confirm that title is now in the name of the surviving joint tenant, that individual can deal with the property as he or she wishes.

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For more information contact

Ontario Real Estate Association

Jean-Adrien Delicano

Manager, Media Relations

JeanAdrienD@orea.com

416-445-9910 ext. 246

Ontario Real Estate Association
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