When someone passes away and leaves behind a home, one of the first questions their executor may face is whether the property can be sold before probate is complete. This is particularly important when the home is vacant, mortgage payments are continuing, or beneficiaries are hoping to settle the estate as soon as possible.
In British Columbia, an executor can often begin preparing a property for sale before probate is granted. However, they should not assume they have the legal authority to sign a listing agreement or enter into a purchase contract until that authority has been confirmed.
While preparations can begin before probate, a grant of probate is generally required to transfer ownership of a property registered solely in the deceased person’s name.
Understanding what can happen before probate, how property ownership affects the process, and what responsibilities an executor has when selling estate real estate can help prevent unnecessary delays and complications.
What Is Probate and Why Does It Matter When Selling a House?
Probate is the legal process through which the Supreme Court of British Columbia confirms the validity of a deceased person’s Will and the authority of the executor named in it.
Once a grant of probate is issued, the executor has formal confirmation of their authority to administer the estate, including dealing with real estate owned by the deceased.
When a property is registered solely in a deceased person’s name, probate is required by the Land Titles Office before ownership can be transferred to a purchaser.
Although an executor’s authority may arise from the Will itself, obtaining probate is often necessary to complete transactions involving estate assets.
The practical process generally involves confirming the executor’s authority, preparing the property for sale, obtaining probate where required, completing the necessary land title registrations, and finalizing the sale.
Can an Executor List a Property for Sale Before Probate?
An executor can often begin preparing a property for sale while waiting for probate, but formally listing the property or accepting an offer requires additional consideration.
The BC Financial Services Authority advises that an executor who has not yet obtained probate may lack the legal authority to sign a listing agreement or enter into a Contract of Purchase and Sale on behalf of the estate. Practically speaking though, many executors list a property “subject to probate”. Executors should get legal advice from a probate lawyer before proceeding.
Even when a property cannot be formally listed immediately, the executor can often begin reviewing its condition, obtaining market valuations, arranging maintenance, and discussing the potential sale with a real estate professional.
Taking these steps early may help the estate move forward more efficiently once the necessary legal authority has been established.
Does the Property’s Title Affect Whether Probate Is Required?
How the deceased owned the property is an important consideration when determining whether probate is necessary.
Property Owned Solely by the Deceased
If the deceased was the sole registered owner of the property, a grant of probate will generally be required before the executor can transfer ownership to a buyer.
The executor must also complete the appropriate land title registration process before the sale can be finalized.
Property Owned as Joint Tenants
When a property is owned in joint tenancy with a right of survivorship, the deceased’s interest generally passes directly to the surviving joint owner.
In these circumstances, the property may not form part of the estate for probate purposes, and the surviving owner can usually apply to update the title without obtaining probate.
However, the circumstances of ownership should still be reviewed, particularly where there are questions about beneficial ownership or whether the right of survivorship applies.
Property Owned as Tenants in Common
If the deceased owned a property as a tenant in common, their ownership interest generally becomes part of their estate.
Probate will usually be required to transfer the deceased’s interest, and the executor may need to coordinate with the other registered owners before arranging a sale.
Reviewing the property’s title early can help determine what legal steps will be necessary.
Protecting a Vacant Property During Probate
When a deceased person’s home becomes vacant, the executor is responsible for taking reasonable steps to protect and preserve the property while the estate is being administered.
One of the first priorities should be contacting the property’s insurance provider. Home insurance policies often contain specific vacancy or unoccupancy provisions, which may affect coverage after a certain period, sometimes as little as 30 days, depending on the policy.
Insurers may require regular inspections, additional coverage, or other precautions to maintain protection.
Executors should also ensure that the property remains secure and properly maintained. This may involve arranging regular property checks, maintaining utilities, preventing water damage, addressing seasonal maintenance, and ensuring the home is adequately heated during colder months.
Mortgage payments, property taxes, strata fees, insurance premiums, and other ongoing expenses may also need to be addressed.
Failing to properly maintain an estate property could result in avoidable financial losses and concerns from beneficiaries. That in turn may result in the executor getting sued personally for the loss.
For a broader explanation of these responsibilities, see our step-by-step guide to executor duties in BC.
Preparing an Estate Property for Sale
Although an executor may need to wait for probate before completing a sale, there are practical steps that can often be taken in advance.
The executor may begin by reviewing the property’s condition, arranging an appraisal or market evaluation, and determining whether repairs or maintenance are necessary.
Personal belongings may also need to be inventoried and secured before the home is prepared for showings. Executors should be careful not to dispose of or distribute estate belongings prematurely, particularly where specific items have been left to beneficiaries under the Will.
It may also be helpful to speak with a real estate professional who has experience handling estate properties.
An experienced realtor can provide guidance on market conditions, pricing, and the preparation needed to make the property attractive to potential buyers.
Before entering into a listing agreement or making commitments on behalf of the estate, however, the executor should confirm that they have the necessary legal authority.
Can an Executor Accept an Offer Subject to Probate?
In some circumstances, an executor may be able to enter into a Contract of Purchase and Sale before probate has been granted, provided their legal authority to do so has been confirmed.
When this occurs, the agreement may include a seller’s-side condition making the transaction subject to obtaining probate.
This means that completion of the sale depends on the executor receiving the required grant and being able to transfer legal ownership of the property.
The wording of the condition is important. The agreement should clearly address what happens if probate is delayed or cannot be obtained within the expected timeframe.
Executors should also be cautious about agreeing to completion dates that may not allow sufficient time for the probate application. After the grant of probate comes in, the sale cannot complete right away. Executors should allow 3 – 4 weeks to allow conveyancers to move the property from the deceased’s name into the name of the buyer.
A delay in obtaining probate could create complications for both the estate and the purchaser, particularly if the contract does not adequately address that possibility.
Having a lawyer review the proposed agreement before it is signed can help protect the estate and reduce the risk of disputes or unexpected obligations.
An Executor’s Duty to Obtain Fair Market Value
Executors have a legal responsibility to act in the best interests of the estate and its beneficiaries. This includes taking reasonable steps to obtain fair market value when selling estate property.
An executor should not simply accept the first offer received without considering whether the price is reasonable in the circumstances.
Obtaining a professional appraisal or comparative market evaluation can help establish an appropriate asking price. Properly marketing the property and reviewing comparable sales can also help demonstrate that reasonable efforts were made to obtain fair value.
Executors should maintain records of valuations, listing information, offers received, and the reasons for accepting a particular offer.
This documentation can be especially important if beneficiaries later question the sale price or the executor’s decisions.
Can an Executor Buy the Estate Property Themselves?
An executor purchasing property from the estate they administer creates a serious conflict of interest.
Executors have fiduciary duties to the estate and its beneficiaries and generally cannot use their position to purchase estate assets for their own benefit without appropriate authorization.
Depending on the circumstances, a proposed purchase by the executor may require fully informed consent from the beneficiaries or authorization from the court.
Similar concerns may arise when property is sold to someone closely connected to the executor.
Because these transactions can expose the executor to legal challenges and personal liability, independent legal advice should be obtained before proceeding.
The terms of the Will must also be considered, particularly where the deceased left specific instructions about the property or provided a beneficiary with an interest in receiving it.
What Happens After Probate Is Granted?
Once the grant of probate has been issued, the executor can proceed with the necessary steps to transfer the property, assuming there are no other legal restrictions or complications affecting the sale.
This generally involves arranging the appropriate land title documentation and coordinating with the professionals handling the real estate transaction.
The proceeds from the sale become part of the estate and must be properly accounted for.
Before distributing funds to beneficiaries, the executor must ensure that the estate’s outstanding obligations are addressed, including applicable debts, expenses, taxes, and any other legal requirements.
The executor should also maintain accurate records of the sale proceeds, real estate commissions, legal fees, and other expenses associated with the transaction.
Selling the property is often an important milestone in estate administration, but it does not necessarily mean the estate is ready for final distribution.
When Can an Executor Distribute the Proceeds from a House Sale?
Even after the property has been sold and the proceeds have been received, executors must consider outstanding debts, taxes, potential estate claims, and restrictions on distributing estate assets.
The 180-Day Wills Variation Period and 210-Day Distribution Rule
Under BC’s Wills, Estates and Succession Act, certain spouses and children of the deceased may apply to the court to vary the terms of a Will.
A wills variation proceeding generally must be commenced within 180 days of the grant of probate.
Separately, BC law generally restricts executors from distributing estate assets within 210 days after the representation grant is issued, subject to statutory exceptions involving consent, court authorization, or other permitted arrangements.
These periods provide an opportunity for potential claims to be addressed before estate assets are distributed.
Executors should be particularly cautious about distributing proceeds from a property sale where there is a possibility of a wills variation claim or another dispute affecting the estate.
Obtaining a CRA Clearance Certificate
Before distributing estate assets, executors must also consider the estate’s tax obligations.
The Canada Revenue Agency issues clearance certificates confirming that applicable tax liabilities have been paid or appropriately secured.
Obtaining a clearance certificate before final distribution helps protect an executor from personal liability for unpaid taxes.
An executor who distributes estate assets without obtaining the necessary clearance certificate may become personally responsible for outstanding tax amounts, up to the value of the assets distributed.
The appropriate timing for requesting a clearance certificate depends on the estate’s circumstances, including the filing and assessment of required tax returns.
Executors should seek professional tax advice where necessary and ensure that sufficient funds remain available to satisfy the estate’s outstanding obligations.
How Westcoast Wills & Estates Can Help
Selling a property as part of an estate can involve much more than hiring a realtor and accepting an offer. Executors must consider probate requirements, property ownership, legal authority, ongoing expenses, and their responsibilities to beneficiaries.
At Westcoast Wills & Estates, our lawyers assist executors across North Vancouver, Vancouver, Burnaby, Surrey, Richmond and surrounding communities throughout the probate and estate administration process, including estates involving real estate assets.
We can help determine whether probate is required, prepare and submit probate applications, explain an executor’s legal responsibilities, and provide guidance on issues that arise when administering or selling estate property.
Whether you are just beginning the probate process or have questions about handling a deceased person’s home, our team can help you understand your obligations and the steps involved.
Contact us to schedule a consultation with one of our probate and estate administration lawyers about your circumstances.
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