A majority of estate holders in Canada do not know how long after probate to sell a house. We do not blame them; the law is indeed a bit confusing when selling a house after probate. Are you also someone who is wondering how long after probate can I sell a house? Let us hold your hand through this.
What is probate, and why do you need it?
When a person dies devolving his estate to the heirs, the family that manages the estate of the deceased person needs to acquire probate to sell the estate’s immovable asset. The grant of probate by the probate court is an important step to sell the property.
But probate sales mean that it can take a lot of time to sell the home. Can you speed up the process? Yes, you can! Let us tell you how.
Probate is nothing but an application to the Surrogate Court that seeks an order that the will in question is the last and the final will of the deceased person. The order also seeks to make clear that the beneficiaries mentioned therein.
Until the court issues probate, no one can affect the sale of the home. Probating an estate can take anywhere between two and four months.
What is the scenario when there is no Will written by the deceased?
If a person in Canada dies without writing a will, the process of estate planning is similar to getting probate. The legal jargon for the court’s written permission to alienate property in case of an absence of a will is ‘letters of administration.’
How long before you can sell a home of the deceased?
Once probate or Letter of Administration is granted from the Surrogate Court, the deceased’s property can be alienated by the people on whom the estate has devolved by way of inheritance or by way of a will. However, there are some ways that the property can be sold without either of the two permissions from the court. You must consult real estate lawyers before considering alienating or transferring property to a third person without officially receiving probate and/or letter of administration.
Why is there a need to sell the home before the grant of probate?
When a person dies leaving behind his estate, the executioner or the personal representative carries the duty to protect it from all sources of liabilities
The liabilities usually include:
– An insurance policy
– Maintenance of the estate
– Burden on the estate like mortgages, fees, etc.,
With costs mounting, it is natural that the first thing that an executor wants is to contact a real estate agent to begin listing the home so that it sells as quickly as possible.
What are the risks if the process of selling begins before probate?
If an heir has transferred the property before probate has been granted to him, there is the likelihood that he may have to face the music. The liability will also extend to the real estate agent who has been complicit in such sales.
The risks are:
– Surfacing of newer will;
– Conditions in the will;
– Separate contract/dower rights that supersede the will;
– One of the persons named in the will wish to receive peremptory rights on the sale of the property in lieu of his/her share of asset in the estate; and
– The person trying to sell has no right.
People who want to sell a house before probate must consult a lawyer to understand the risks.
Here is how you can sell the property before probate subject to the risks mentioned above:
- Limited Grant Of Probate
As the name suggests, the grant is limited to only the sale of the home. The estate must further apply for the complete grant of probate to distribute the proceeds from the sale. Limited grant of probate is the fastest way to secure probate. The executor can sell the home within 30 days.
- Conditional contract:
A conditional contract for sale pertaining to the grant of probate by the court can be drawn. The condition must explicitly state that the contract to sell would be null and void in the absence of the probate.
- Tenancy At Will
The buyer of the home moves in without any registered transfer of land. The buyer pays rent to the estate till the time the court is satisfied and grants probate.
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