# Estate issue involving real estate



## Russ (Mar 15, 2010)

This question may be outside the margins of this forum, but I'll ask anyway.

Five years ago Dad died. All assets, including the family home, were jointly owned with Mom. Dad's will was not probated. Two months ago Mom died. Probate is necessary and has been started. There are five beneficiaries of whom two are executors. The executors want to sell the family home which is still registered in both Mom's and Dad's names.

Will the executors be able to sell the home? Is there a legal procedure that will be required? 

If anyone has experience with this type of situation I would appreciate your thoughts. I am planning to visit a lawyer but I like to be prepared in advance for the discussion.


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## AltaRed (Jun 8, 2009)

It was sloppy the executor of your Dad's will did not change title of the home at the same time the executor was changing ownership of other joint assets like vehicles, filing final tax returns, etc. It would have been a simple procedure on titles of 'joint tenancy'. 

IANAL but I would assume the executor of your Dad's estate may have to be party to the paperwork. I think only an estate (family law) lawyer can answer that question.


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## Just a Guy (Mar 27, 2012)

They will be able to sell, but they may need to finish the paperwork that should, or may already have been done, from your father's estate. They'd probably need his certified death certificate as well as your mother's. 

It's more of a hassle than a problem, but it's a hassle that comes at a bad time, when you don't really want it.


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## carverman (Nov 8, 2010)

*Real Estate*


> If you own real estate with another person and both of you hold title as “joint tenants with right of survivorship”, when one of you dies, the other owns the real estate outright, and it does not pass through the estate.





> Upon the *death of a joint owner, the property is re-registered to remove the name of the deceased owner, leaving the property in the name of the surviving owner.*


Wills and estates



> After someone dies, you may need to check if the deceased person has a will. A will is a legal document that sets out who will inherit property, possessions and other personal items.





> To find out if a will has been filed: you can contact the estates division of the local Ontario court in the community where the deceased lived.


*With a will*


> If the deceased has a will, a “probate” court may or may not need to determine that it is legal.
> 
> If a court determines that a will is legal, it also grants *“probate” – or approves – a trustee to carry out the wishes of the deceased person. This trustee is often named in a will.*
> 
> ...


*No will*


> *Without a will, an estate is distributed according to the law. This can be a complex process*. If you are in this situation, you might want to contact a lawyer.


So when Dad died intestate, the property title would probably pass to to Mom as " joint tenants-right of survivorship", if that is the way Dad and Mom were listed on the title.

A paperwork "cleanup" may be necessary, to remove Dad from the title. 
That will require the services of a lawyer, and the death certificate.

I believe there are two kinds of these, the funeral director death certificate, and the official one from the province that the deceased lived. 
The former is to allow copies to be sent to banks and gov't ministries such CRA,CPP, and for any provincial benefits and the later may be necessary to update the title of the real estate property.

When owning property, it is always advisable to have a will, in order not to tie up the sale of real estate
until probate is completed. My opinion of course (I'm not a lawyer).


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## Russ (Mar 15, 2010)

In this case both the mother and father had wills. The executors of both wills are the same two adult children. Before the father passed away all of the parents' assets were jointly held by the father and the mother. When the father died all of the parents' assets were automatically owned by the mother. The father's estate had no assets. That is why the father's will was not probated.

As AltaRed pointed out above, it was sloppy work by the executors (or the mother or her other adult children) not to have arranged for her to change the title of the home to her name only before she, too, passed away. The executors are in the process of probating her will. 

And now it appears that the father's will must be probated - 5 years after his death - in order for the executors to sell the home.


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## CharlesF.Donahue (Jan 7, 2015)

All things are done by real estate agent because they know the conditions. They can easily identify the processing part of a will. A paper work may be compulsory for completion of deal.


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