Estate Planning Law -- Dealing with Land of Deceased

Land Interests of a Deceased in Alberta

When can they be Transferred and/or Sold?

By Courtney Aarbo Fuldauer LLP,  Barristers & Solicitors

In many cases the majority of a deceased’s estate value is made up of  land interests (house, condo,farm land). Their efficient transfer to ‘survivors’ and ‘beneficiaries’ is very important.

A first step for an Executor of a deceased is to determine what land interests in fact come into the Estate on a death.

If a deceased owned a land interest ‘jointly with right of survivorship’, then the land interest is not technically part of the estate, and does not become an asset under the will for the Executor to administer. Instead the land interest of the deceased transfers automatically on death, to be owned 100% by the ‘survivor’ on title. This method of ownership is typical of spouses and common law partners, meaning the surviving spouse/ partner will automatically become sole owner. What the survivor on title needs to do is file at the Land Titles Office the necessary ‘ Survivorship Declaration’, together with proof of the death.

All other forms of land titles ownership by a deceased will in fact fall into the deceased’s estate and be dealt with under the term’s of the will, or if no will, pursuant to the Wills and Succession Act of Alberta (for an intestacy).

A land ownership coming into the estate cannot have its title altered, be it to the name of a beneficiary, or to a new purchaser if being sold, until a Probate Order or Order for Administration is granted by a Justice of the Alberta Court of Queen’s Bench. The Land Titles Office by law cannot alter the title until there is a Court Order in place.

The obtaining of a Court Order will occur only after the Executor under the will, or the person applying to administer an estate, brings the necessary ‘Probate Application’, or ‘Application for Appointment of Administrator’ to the Courts. The procedure involves the filing of about a 10 to 15 page application touching on various aspects of the deceased, the beneficiaries, the will, and the estate value. At present the Court is taking about 2 months to approve an application once it is filed in the correct form.

Until the ‘Probate Order’ or ‘Order of Administration’ is granted by the Court, the Executor and Administrator have no ability to legally sign contracts listing or selling land, let alone signing a transfer to a beneficiary or purchaser. Once the Court Order is obtained it is filed at Land Titles and the land interest will be placed into the name of the Executor/Administrator. Only then can the Executor/Administrator sell or transfer the title.

It is not only essential for the Executor or Administrator of an Estate to understand the above procedure and timing for dealing with land interest in estates for sale or transfer purposes, it is also essential for all necessary steps to be taken to secure, insure, and safeguard the property while the process unfolds.

At Courtney Aarbo Barristers & Solicitors we are happy to assist you with any estate issues or concerns that might occur, including applying for Probate and Administration Orders, and transferring land interests.

For more information contact Courtney Aarbo Barristers & Solicitors at 3^rd Floor 1131 Kensington Road N.W., Calgary Alberta, T2N 3P4 or info@courtneyaarbo.ca or phone 403-571-5120.

Courtney Aarbo Barristers & Solicitors

www.courtneyaarbo.ca  

- The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal advise, please contact a lawyer.