You may have experienced the loss of a loved one and inherited property in Ontario. You have probably heard the term “probate.” The legal term is Certificate of Appointment of Estate Trustee, but most call it probate. As a realtor specializing in estates, I frequently get asked, “How long does it take to get probate”? Several factors must be considered before determining how long it will take to obtain probate in Ontario.

What is Probate Exactly?

Probate is a legal process that confirms the validity of the deceased’s will and provides the executor with the authority to manage and distribute the deceased’s estate, including any real estate. In most cases, without probate, a real estate sale wouldn’t be able to be completed.

Can You Sell a House Without Probate?

There are only two scenarios in Ontario where you can sell a deceased person’s property without probate.

Survivorship: Typically, spouses own property as joint tenants, so when one passes away, the surviving spouse becomes the sole owner. This is completed through the registration of a survivorship application, and probate isn’t required.

First Dealings Exemption: A property can be sold without paying probate tax (Estate Administration Tax) if the sale is the first “dealing” since the property or ownership was converted to the Land Titles System. This should only be done in consultation with a legal expert to confirm whether the house qualifies.

Selling your parents’ home? You may find these other blogs helpful.

• When Can You Sell A Parents’ Home After They’ve Passed Away?
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How Long Does Probate Take in Ontario?

A common misconception is that probate in Ontario only takes six to eight weeks to complete. The whole process can take six to twelve months in Ontario. The Certificate of Appointment of Estate Trustee establishes the estate trustee but doesn’t account for the entire estate settlement process.

Step 1: (2-6 weeks) Before applying for probate, you should organize all the necessary documents, including the deceased’s will (original copy) and death certificate.

You will also be required to complete court forms, which provide details such as the assets’ nature, extent, and valuation. For example, when it comes to real estate, you should, as early as possible, have a realtor perform a market evaluation as of the date of the deceased’s death. This is done to determine probate fees, also known as estate administration tax in Ontario.

Depending on how organized the deceased’s records were will determine how quickly or how long this step will take.

Step 2: Submitting the application to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee (1-3 months).

The court will review the documents and may request further information before issuing a Certificate of Appointment of Estate Trustee (Probate Certificate).

An example of wanting further documentation would be when the deceased dies, and their will names an estate trustee, but the named trustee is incapable or unwilling to act. The remaining beneficiaries may wish to elect a third party as estate trustee. This step could take longer if the courts are backlogged.

This is part of the administrative process under rule 74, requiring numerous consents, and obtaining the required consent may not be possible. Having a great legal expert on your side is essential to navigate this situation successfully. If this occurs, you can expect the process to take longer.

Step 3: Before probate is granted, the executor must pay the estate administration tax (commonly referred to as probate tax). In Ontario, it’s calculated as:

1. $250 for estates valued up to $50,000
2. 1.5% of the estates value above $50,000

This must be paid upfront (Immediately upon approval) before the court finalizes the probate certificate.

Step 4: Receiving the probate certificate (Certificate of Appointment of Estate Trustee,3-6 months). A Certificate of Appointment of Estate Trustee is the document you will receive if your application is successful. The certificate will give you the authority to manage the estate assets and pay the estate debts.

Once the application is approved, the court will issue the certificate within 1-2 weeks. This document allows the executor to handle the estate’s assets, including the sale of property.

Then, the estate trustee has 180 days from the date the certificate was granted to file an estate information return with the Ministry of Finance, which lists the value of the deceased’s assets at the time of death.

Step 5: Selling the property (timeline is variable). It’s hard to determine the timeframe for the sale of real estate because there are many factors to consider:

1. Hiring a Realtor
2. Market conditions
3. Current property condition and any necessary repairs
4. Decluttering and staging the house.
5. Listing and marketing the home
6. Qualifying buyers, negotiating a purchase agreement, satisfying any conditions, and closing

Typically, once the home is listed for sale on the market, the sale process from beginning to closing takes 1-3 months.

Probate in Practice

I want to share my experience representing a buyer in a complex estate sale. It wasn’t typical because a single father of a young family passed away suddenly. The house was put on the market before the executor received probate.

The challenge was that everyone wanted a deal completed, but the house was subject to probate and had not yet been obtained. The estate’s beneficiaries were teenagers; their mother, the deceased’s ex-wife, was the executor. It was extremely sensitive but required a solution to a pain point. In consultation with my client’s lawyer, we were able to draft an offer where the buyer could move into the house as an occupant if the probate certificate wasn’t received before the date set for completion.

We also stipulated that if probate wasn’t received within six months, the buyer could walk away from the deal and get their deposit back in full without deduction, which protected my client from risk. We ended up with a win-win as my client obtained the house they wanted without risk. Fortunately, probate was obtained before closing, and the deal closed as it was supposed to.

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• What Seniors Need to Know About Downsizing for Retirement
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Patience Pays Off

As a general rule of thumb, when selling a property as part of an estate, it’s usually best to wait for probate to be completed because the house will appeal to more buyers, netting you a better return.

Several factors could cause potential delays in the probate process in Ontario, including:

1. Some areas in Ontario have longer processing times.
2. Probate can take years instead of months if beneficiaries challenge the will.
3. If the asset records aren’t well-organized, the executor will spend more time locating the necessary paperwork.
4. Decisions can take longer if multiple estate trustees disagree.

You can’t control the time it takes to get probate, but you can streamline the process.

1. Ensure all documents are complete and accurate before submission.
2. Paying the probate fees promptly.
3. Clear communication between all beneficiaries and the estate lawyer.

In my experience listing properties that are estate sales, getting probate is usually a six—to twelve-month timeline in Ontario. Of course, each situation is different. You should reach out to a legal expert who can provide a more precise answer depending on the jurisdiction the home is in.

Experience and knowledge are imperative to mitigate risk when dealing with an estate sale. Being an executor, you face more significant risks and liabilities to the beneficiaries of an estate sale. As a senior real estate specialist (SRES), I have the unique skill set to help guide you through such a complex situation. If you have any questions about your next chapter, contact me.

Need guidance with probate or selling a home? I can help! Give me a call at 647.283.2127 or email stuart@stuartnodell.com to get in touch.

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