Can You Sell a House Before Probate in Alberta?

It is the first question most Alberta executors ask, usually within a week of the funeral: the house is empty, the bills keep coming, and probate sounds like months away. Can you sell now, or do you have to wait?

The answer splits in two. You can do almost everything before the grant arrives, including listing the home and accepting an offer. What you cannot do is close. This article explains where that line sits, why, and how to plan around it. For the whole process from start to finish, see our executor's guide to selling estate property in Edmonton.

It is general information about Alberta, not legal advice. Your estate lawyer should confirm how it applies to your estate.

Why the sale cannot close without the grant

In Alberta, ownership of land is whatever the Land Titles register says. When the owner dies, the title still shows their name, and nobody can sign a transfer out of that name until Land Titles accepts that someone has the authority to.

That authority is the Grant of Probate (or, if there was no will, a Grant of Administration) from the Court of King's Bench. Once it is issued, your lawyer files a Transmission to Personal Representative with Land Titles, which puts you on title as executor. Only then can you sign the transfer to a buyer.

The buyer's side enforces this too. The buyer's lawyer will not release the purchase money against a transfer that Land Titles will not register, and the buyer's lender will not fund it. A sale that tries to close before the grant does not close.

What you can do before the grant

Most of the work of selling an estate home has nothing to do with the court, and it can all happen while the application is in progress:

• Secure the house. Tell the insurer the owner has died and the home is empty, keep the heat on, change the locks.
• Apply for the grant. The sooner it is filed, the sooner everything else can close. Alberta's filing fee is set by the estate's net value and never exceeds $525.
• Get the house valued. A date-of-death appraisal for the tax return, and pricing opinions for the sale.
• Clear the contents, after specific gifts are handed over and beneficiaries have chosen their keepsakes.
• Find the Real Property Report. Buyers will need a current one with municipal compliance, and an old one may need updating by a surveyor.
• Choose an agent and list. Brokerages usually ask to see the will and the death certificate before taking an estate listing.
• Accept an offer, with a completion date and terms that allow for the grant.

Done in parallel, this turns the wait for the grant into preparation time instead of dead time.

Accepting an offer before the grant

An offer accepted before the grant is a normal Alberta purchase contract with one extra risk: neither side knows exactly when the estate will be able to close. There are two common ways to handle that, and your lawyer should draft or approve the wording either way.

A completion date with room to spare

If the application is well along, the simplest approach is a completion date far enough out to allow for the grant and the Land Titles transmission, with a margin. This suits buyers who are not in a hurry. It fails if the grant is late, so ask your lawyer how long applications are currently taking before you pick a date.

A term tied to the grant

The other approach makes the deal depend on the grant itself, with completion set a fixed number of days after it is issued, or a right for either side to end the contract if it has not arrived by a set date. This protects the estate from a firm closing date it cannot meet, but it asks more of the buyer.

What the buyer is thinking

An open-ended closing date is a real cost to a buyer. Their mortgage approval and rate hold have expiry dates, they may have their own home to sell, and they may be giving notice to a landlord. Expect fewer offers, or lower ones, on a listing with an uncertain completion. The further along your grant application is when you list, the less of that discount you pay.

The listing should say that the seller is an estate and where the grant application stands. Buyers who know up front negotiate around it. Buyers who find out after the offer is accepted tend to walk away.

When the house does not need probate at all

Whether the house needs a grant depends on how the title was held, not on the size of the estate or on what the family agrees.

Joint tenancy

A home held in joint tenancy passes to the surviving owner automatically, by right of survivorship. It never becomes part of the estate. The survivor applies to Land Titles with proof of death to take the deceased's name off title, and can then sell like any other owner. Your Certificate of Title says "joint tenants" if this is how the home was held.

Tenants in common

Co-owners who are tenants in common each own a share that passes under their own will. The deceased's share goes through their estate like any other asset, so a sale of the whole house still waits on the grant for that share.

What does not avoid probate

A small estate does not, if it includes land. Beneficiaries agreeing in writing does not either. Neither puts anyone's name on the title, and Land Titles still needs the grant. If the house was in the deceased's name alone, plan on probate.

What slows a grant down

Some delays are outside your control. These ones you can see coming:

• No original will. The court wants the original, not a copy. Check the deceased's lawyer, safety deposit box and papers early.
• No will at all. Someone has to apply for a Grant of Administration, which can mean agreeing who that will be.
• Notices. Beneficiaries and certain family members must be served with notice of the application. Missing addresses take time to find.
• A minor beneficiary. The Office of the Public Guardian and Trustee must consent to any transfer of the land. Alberta notes its review can take a week or more on its own.
• A surviving spouse. Under the Dower Act, a surviving married spouse may hold a life estate in the home, and their consent or a court order is needed before it can be sold.
• Disputes. A challenge to the will or to who should be executor can stop the application until it is resolved.

Mistakes that cost executors

• Signing a firm completion date with no room for the grant. If the estate cannot close, it is the seller in breach.
• Waiting for the grant before doing anything. Every month spent waiting to start is another month of heat, insurance and property tax.
• Letting a beneficiary sign. Only the executor named in the grant can sign the transfer, however close the family is.
• Assuming joint ownership means joint tenancy. Check the title. Tenants in common still need the grant.
• Keeping the estate status quiet. Buyers who learn it late lose confidence in the deal.

Talk it through

If you are an executor with a house to sell in Edmonton and the grant is still in progress, contact Ryan McCann. We can value the home, plan the listing around your lawyer's timeline, and be ready to move as soon as the grant arrives.

Sources

• Government of Alberta: Deceased persons' estates — alberta.ca

• Government of Alberta: Surrogate applications — alberta.ca

• Alberta Dower Act, RSA 2000, c D-15 — canlii.org

This article is general information about Alberta, not legal advice. Confirm how it applies to your estate with an estate lawyer.