What is Probate & How it Affects a Home Sale
What is Probate and How Does it Affect a Home Sale in Alberta?
Important Disclaimer: This article provides a general overview of probate for informational purposes only. It is not legal advice. You must consult with a qualified estate lawyer for guidance on your specific situation.
If you are the executor of an estate that includes real estate, one of the first terms you will hear from your lawyer is “probate.” Understanding this legal process is the most important step in being able to sell the property. This guide explains what probate is in simple terms.
What is a Grant of Probate?
Probate is the formal legal process where the Court of King’s Bench of Alberta reviews and validates the deceased’s will. If the will is deemed valid, the court issues an official document called a Grant of Probate. This document legally confirms the will’s authenticity and gives the named executor the authority to manage and distribute the assets of the estate, including selling the home.
Why is Probate Necessary to Sell a House?
In simple terms, the Alberta Land Titles Office will not allow you to transfer the ownership (title) of the property to a new buyer without this official court order. The Grant of Probate is the legal key that unlocks your ability to sign the closing documents and complete the sale on behalf of the estate.
The Probate Process in 3 Simple Steps
While the legal details are complex and handled by your lawyer, the process generally follows these three stages:
- Application to the Court: Your lawyer will prepare and submit an application to the court, which includes the original will, a detailed list of the estate’s assets (including the property), and other required legal forms.
- Court Review: A judge reviews the application to ensure the will is valid and that all legal requirements have been met.
- Grant of Probate is Issued: Once the court is satisfied, it issues the Grant of Probate to the executor. You are now legally authorized to sell the home.
How Long Does Probate Take?
This is the most common question from executors. The timeline can vary significantly, but in Alberta, it is a lengthy process. You should be prepared for it to take several months from the time your lawyer submits the application to when the Grant is issued. It is crucial to factor this delay into your plans.
Can I List the Home Before Probate is Granted?
Yes, you can. While you cannot legally complete the sale and transfer the title until you have the Grant of Probate, you can take steps to prepare and market the home beforehand. This often includes preparing the house, listing it for sale, and even accepting an offer that is conditional upon the Grant of Probate being issued.
Navigating the probate process is the most challenging part of an estate sale. Partnering with a lawyer and a Realtor® who are experienced in this area is the best way to ensure a smooth and successful process. Learn more in our Step-by-Step Guide to Selling an Estate Home.
For a complete overview of the topic, return to the Ultimate Guide to Estate Sales in Edmonton.
Common Seller FAQs
If you’re ready to sell or have more questions, you can contact us here.
What is probate and what does it mean for a home sale?
Probate is the legal process of administering a deceased person’s estate, which involves validating their will (if one exists), identifying and inventorying their assets, paying off debts and taxes, and distributing the remaining assets to the beneficiaries or heirs. This process is overseen by a probate court to ensure fairness and adherence to the law.
Do I need probate to sell a house after someone dies?
You will likely need probate to sell a house if the deceased person owned it solely. However, if the property was owned jointly with another person as “joint tenants,” the property automatically transfers to the surviving owner, who can then sell it without probate. If the property is owned as “tenants in common” or was in a living trust, a deed of transfer will still likely need to be processed through probate before a sale can occur.
How long does the probate process take when there’s real estate involved?
The length of the probate process with real estate varies significantly, but it can range from 9 to 12 months for a simple case to two years or more for more complex situations involving disputes or multiple assets. Several factors, like the complexity of the estate and whether there are disputes, can extend the timeline.
Can I list a property for sale before probate is granted?
Yes, you can list a property for sale before probate is granted, but you cannot complete the sale and transfer legal ownership until the Grant of Probate is issued.
Can I close the sale of a house before probate is completed?
No, you cannot close the sale of a house before probate is completed because the executor lacks the legal authority to transfer ownership until the court grants the Grant of Probate. However, you can market the property and enter into a contract for sale that is conditional on receiving the Grant of Probate. This means the sale is possible during probate, but the final closing, or settlement, can only happen after the court has issued the necessary order.
Let’s Build Your Winning Strategy
This guide has given you the knowledge. Now, let’s turn that knowledge into a successful home purchase. As your Edmonton real estate advisor, my job is to provide the hyper-local data and expert advice needed to secure the right home at the right price.
