Estate Sales, 101
When someone dies and they own real estate, the number one question we are asked is: “What about timing? When can we sell the real estate?”
Answer: It depends on several factors.
When land is owned by a deceased person, it can only be transferred after a Grant or Court Order is issued. This process can take many months.
In the meantime, significant steps can be taken to get the property ready for sale, list the property with a realtor and entertain and accept offers. The authorized legal representative of the estate (commonly referred to as the Executor(trix) and now referred to as the Personal Representative), has the authority, responsibility and the duty to care for and manage the property until it can be transferred. These duties extend to ensuring the property is secure, utilities and other expenses paid, and insurance is maintained. If the property is vacant, it is essential the Personal Representative contact the insurance company to request and obtain a vacancy endorsement or you may have no valid insurance.
Once the property is ready for sale, it can be listed with your realtor, provided all necessary consents are in place. This includes the consent of the Public Trustee where there are minor beneficiaries and the consent of all other beneficiaries in certain circumstances. Please note the Public Trustee will not consent to any actual sale until a Grant is issued by the Court.
If an offer is received and accepted before the official Court Order is obtained to allow the transfer, then special considerations apply. Special wording can be inserted in the Real Estate Purchase Contract that acknowledges this is an estate sale and that title can only be transferred once the Court Order is obtained. The parties can then either agree to delay completion and possession until the Court Order is issued, or agree to tenancy possession so the buyers can occupy the property right away and then transfer the title once the Court Order is obtained. Typically, if the tenancy is granted, the buyer will pay some form of “rent”; often by paying the amount they would pay on a new mortgage. In special cases, at an added cost, it is possible to obtain an interim Court Order allowing the actual transfer of the land to take place before the Grant is issued.
From the buyer’s perspective, when buying property from an estate, make sure you ask many questions regarding the status of the Court application. It can sometimes take several months before the actual Court Order is issued. During that time, your mortgage commitment may expire and you will be subject to the prevailing mortgage rates at the time the commitment expires. Generally speaking, if the application for a Court Order has actually been submitted to the Courts, the typical time required for a Grant is 8 weeks or less. However, even this can be prolonged if there are errors in the application.
This article is meant as a general discussion of topics in this area. It is not meant to offer specific legal advice to anyone as individual circumstances can have an impact on each and every situation.
