Selling a House in Probate in Ontario: The Certificate and the Order of Steps

The short answer

Selling a house in probate in Ontario means the sale waits on a court document in many cases. The document is called a Certificate of Appointment of Estate Trustee. It is how the court gives a person the authority to manage an estate. Ontario.ca says that when a deceased person’s real property must be sold, the certificate should be obtained before anyone enters into an agreement of purchase and sale.

This post is general information, not legal advice. Every estate is different. The rules that apply to yours depend on the will, who owned the house and how it was owned. An estates lawyer should confirm each step for your family before you list or sign anything.

If you are earlier in the process and helping a parent while they are alive, our post on selling a parent’s house in Markham covers who signs in each situation.

What is probate?

Ontario.ca describes probate as a procedure to ask the court to do one of two things. The court can give a person the authority to act as the estate trustee of an estate. Or it can confirm the authority of a person already named as the estate trustee in the will of the person who died.

An estate trustee is the person who manages the estate. If the will names someone, that person may be called an executor in everyday speech. When there is no will, the court can appoint someone.

The result of a successful application is a Certificate of Appointment of Estate Trustee. Ontario.ca says it authorizes the estate trustee to manage the estate assets and pay the estate debts.

When does a house sale need a Certificate of Appointment of Estate Trustee?

Ontario.ca lists situations where an application is appropriate. Two of them matter most to anyone thinking about selling a house.

• The estate’s assets include real property that does not pass to another person by right of survivorship.
• The deceased’s real property must be sold.

For the second situation, the page adds the advice we mentioned above: obtain the certificate before anyone enters into an agreement of purchase and sale.

The first situation is the one to ask your lawyer about. A house that passes to a surviving co-owner by right of survivorship is treated differently from a house held only in the name of the person who died. We do not decide which category a house falls into. Your lawyer reads the title and the will and tells you.

Ontario.ca also lists other reasons an application can be appropriate, including when there is no will and when a financial institution wants proof of the estate trustee’s authority.

Can you list the house before the certificate is issued?

This is the question families ask us most. The honest answer is that the government page we rely on does not address listing on its own. It addresses the agreement of purchase and sale. It says the certificate should be obtained before anyone enters into one.

That leaves a gap that only a lawyer can fill for your file. We do not tell families that they can or cannot list before the certificate is issued. What we can say is that a listing agreement is a contract too. Before the estate trustee signs one, we ask for the lawyer’s direction on timing and on who has authority to sign. Our estate sales service is built around working from the lawyer’s instructions.

Some practical points are not legal questions at all. Preparing the house, clearing belongings and gathering information such as property tax bills and condo documents can often be organized with the family while the application is being prepared. Who is allowed to authorize the work and who pays for it are questions for the lawyer.

The steps and the order

The sequence below follows the process on Ontario.ca. Your lawyer will adjust it for your situation.

1. Confirm who the estate trustee is and whether probate is needed for the house. This is a conversation with an estates lawyer.
2. Identify the value of the estate assets. Ontario.ca lists this as part of preparing the application.
3. Complete the court forms. Ontario.ca says they are signed before a Commissioner for Taking Affidavits.
4. Serve documents on beneficiaries before filing. Ontario.ca includes this as a key step.
5. Calculate the estate administration tax and pay it when the application is filed.
6. File the application with the Superior Court of Justice. Provide a bond if one is required.
7. Receive the Certificate of Appointment of Estate Trustee.
8. List the house and sign an agreement of purchase and sale once your lawyer confirms the estate trustee can do so.

Estate trustees who have not been through this before sometimes assume that step 8 can run alongside steps 1 to 7. The Ontario advice about the certificate and the agreement of purchase and sale is the reason we build the plan the other way round, with the certificate first.

What does it cost in estate administration tax?

Ontario.ca sets out the estate administration tax for applications on or after January 1, 2020. The tax is paid by the estate as a deposit when you apply for the certificate.

Estate value	Estate administration tax
$50,000 or less	$0
Over $50,000	$15 for each $1,000 or part of $1,000

The estate value rounds up to the nearest thousand dollars. Here is a simple illustration with round numbers, not a real estate. Suppose an estate is valued at $800,000. The amount over $50,000 is $750,000. That is 750 units of $1,000. Then 750 times $15 is $11,250. Your lawyer will calculate the real figure using the rules on the page and the value of your estate.

Ontario.ca also says that estate representatives must file an Estate Information Return within 180 calendar days after the certificate is issued, even when the calculated tax is zero. That deadline moves to the next business day if it falls on a weekend or holiday.

How is the house valued for the tax?

Ontario.ca tells estate representatives to use the appraised value at the date of death, even if the property sells for less or more shortly after the death. In plain terms, the sale price a few months later does not replace the value at the date of death for this calculation.

That matters when you are deciding on a listing price. The listing price and the date of death value are separate numbers for separate purposes. We can talk through the market side with you. Your lawyer and the estate’s advisors handle the valuation for the tax.

Is there a faster route for smaller estates?

Ontario.ca says you can apply for a Small Estate Certificate if the estate is valued at up to $150,000. The figure applies to the value of the estate. Your lawyer is the one to say which application is correct.

How long does probate take?

The only timing statement we are comfortable repeating comes from Ontario.ca. It says applications are typically processed within 15 business days. It also says delays can happen when documentation is incomplete or when judicial review is needed.

That figure covers the court processing of the application. It does not include the time to gather documents and prepare the forms, serve beneficiaries or find a buyer. We do not give a timeline for your whole sale until the lawyer has confirmed where the application stands.

Questions to bring to the estates lawyer

Before you list, these questions help the conversation go further.

• Does the house need a certificate or does it pass by right of survivorship?
• Who is the estate trustee? Must any co-trustees all sign?
• Can we sign a listing agreement now or should we wait for the certificate?
• When should we plan for the agreement of purchase and sale to be signed?
• Which application applies? What is the estate administration tax?
• Who should arrange an appraisal for the date of death value?
• What is the deadline for the Estate Information Return after the certificate is issued?

What to do next

Start with the lawyer and the certificate, then bring us the house. We can prepare the home and plan pricing. Then we line up the marketing so that the listing is ready when your lawyer says the estate can move. Our post on using a power of attorney to sell a house in Ontario explains why that authority ends at death. Our guide to selling an estate home in Markham covers the wider picture. If you want to see how we work with sellers, start at our sellers page.

When you are ready to talk about the house, contact us and we will work alongside your lawyer.