Are You Involved in Selling an Estate Property?

There was a time when a person with signing authority for an Estate was called

  • An executor or executrix if a valid will existed,
  • An administrator if no will existed.

Today an estate’s signing representative is called an Estate Trustee with a Will or Estate Trustee Without a Will.

Your Lawyer’s Basic Role in Selling a Property

  1. Your lawyer will need to address the rights of the beneficiaries to deal with a property, how debts will be satisfied and who may be entitled to any claims.
  2. In addition, you lawyer will establish the validity of the will, the signing authority of the person selling a property and whether a buyer can obtain good title.

Obtaining a Certificate of Appointment

Unless the property was held in a Joint Tenancy, an application to the Court is made to obtain either a Certificate of Appointment of Estate Trustee With a Will or a Certificate of Appointment of Estate Trustee Without a Will.

When can a Listing or Offer to Purchase be signed?

Until a Court Certificate of Trustee is issued no one has the legal power to sign either a listing agreement or an Agreement of Purchase and Sale. In practice, these agreements can often be executed on condition that the seller obtains a Certificate of Appointment or registration of the will.

Basic Steps

To determine the value of the assets, your lawyer will usually obtain a REALTOR®’s written Opinion of Value for a property.

An application is then made to the court and a Certificate is issued in approximately six weeks from filing of all court documents. The Certificate is then registered at the registry office, along with other legal documents and statements such as rights of a spouse, the rights and consent of beneficiaries and more.

Obtaining a Clearance Certificate from CRA

With the help of an accountant, the Estate Trustee will usually establish a reserve out of the estate’s assets, including the proceeds from the sale of a property, for the payment of taxes. Only on receiving a Clearance Certificate from Canada Revenue Agency (CRA) should the balance of any reserve for taxes be distributed.

The above is a general outline only and not meant to be taken as legal advice. For your specific situation, an estate lawyer is your best source of information.

(Source: Ontario Real Estate Association)

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