Real Property

The value of the real property should be established by obtaining a report from a land appraiser or agrologist; a market evaluation from a real estate agent; or a property assessment from a city, town or municipality.

Letters Probate or Letters of Administration with Will Annexed will be required if the estate assets include real estate in order to conduct any land transactions with Information Services Corporation (ISC). Real property that is solely in the name of the deceased is listed in the Statement of Property – Form 16-14 as a Part I Asset.

Pending the sale or transfer of agricultural or residential property, it may be advisable to lease or rent the property. Under The Administration of Estates Act, a lease cannot be for more than one year unless all of the interested beneficiaries consent.

Real property can be dealt with in the following ways:

• transferred to all beneficiaries as part of their share;
• transferred to one beneficiary as part of his/her share;
• transferred to a city, town or municipality in lieu of property tax arrears;
• transferred to a mortgage holder;
• sold to pay estate debts; and
• sold at the request of beneficiaries.

If there are estate debts and insufficient funds to pay those debts, then real property may have to be sold to pay those debts. In these instances, the consent of the beneficiaries is not required, but it is wise to obtain it anyway.

When the executor/administrator sells real property, the following should be obtained:

• written consent of all of the beneficiaries;
• Certificate of No Infants Interested, when there are no minor beneficiaries (children under the age of 18); Form 16-7
• For minor beneficiaries (children under the age of 18), the following is required:
  • consent from the legal guardian as children under the age of 18 cannot give legal consent;
  • an acknowledgement from each minor beneficiary fourteen years of age or older, which indicates that he or she has been advised of the particulars of the proposed sale of real property and consents to the sale;
  • consent to the transfer of the property must be obtained from Children's Services at the PGT. This authorization document is a requirement of ISC.

The Income Tax Act requires that every personal representative obtain a Final Clearance Certificate from Canada Revenue Agency before distributing to the beneficiary any property under their control.

The real property must be transmitted at ISC into the name of the personal representative of the estate. Afterwards, if the estate is not insolvent, the property can then be transferred into the name of one or more beneficiaries or a purchaser.