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Back to the blog August 7, 2015

Things to Consider When Carrying Out An Estate Sale

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by Michael Scott

When a person dies as the registered owner of a property in BC, there are a number of things to consider and steps to take before carrying out a sale or transfer of the property.

First, a title search should be obtained to confirm that the deceased is on title and there are no surviving joint tenants. If there is a surviving joint tenant, then the death certificate can be filed with the Land Title Office to remove the deceased from title.

If there are no surviving joint tenants, the Will needs to be reviewed to determine who the executor is and if there is a specific gift of the property. The executor then needs to apply to the Supreme Court of BC to obtain a Grant of Probate, which will allow the executor to transmit the property from the deceased’s name into the name of the estate. Once in the name of the estate and subject to what is expressed in the Will, the executor can transfer the property to one or more beneficiaries or liquidate the property through a sale.

Where a Grant of Probate is required, it is important to note that the probate application process can take 3-6 months, and a sale or transfer of the property cannot be completed until a Grant of Probate is obtained. In some cases, the Supreme Court of BC is willing to expedite the process if there is a signed Contract of Purchase and Sale in place. In such an event, to protect the executor the Contract of Purchase and Sale must state that the Contract is subject to the executor obtaining a Grant of Probate. An executor should consult with the estate lawyer before entering into a Contract of Purchase and Sale under these circumstances.

If there is no Will, then a family member (or other person/entity) will need to apply to the Supreme Court of BC to obtain Letters Administration, which will appoint the applicant as the administrator of the deceased’s estate. Once Letters Administration is obtained, the administrator can transmit the property from the deceased’s name into the name of the estate. Before carrying out a sale of the property, the administrator should consider if there is a surviving spouse, as the surviving spouse may have some legal entitlement to the property as an intestate beneficiary.

Similar to the probate process, an application for Letters Administration can take 3-6 months, and a sale or transfer of the property cannot be completed until Letters Administration is obtained. Unlike an executors ability to request that probate be expedited, an administrator should not make attempts to expedite Letters Administration. The difference between the two is that the executor receives some legal authority through the Will immediately following the deceased’s passing, which allows the executor to enter into contracts before the Grant of Probate is obtained. The administrator has no Will to give any immediate legal authority, so the administrator should await Letters Administration before entering into any contracts.

Things to Consider When Carrying Out An Estate Sale