Educational information only — not legal advice. I’m a real estate broker, not a lawyer. Please read the full note at the end of this article.
Why I started paying attention to estates
My interest in estate real estate started with a personal experience, not a business plan.
When my father’s partner passed away, she didn’t have a will. Like a lot of families, we suddenly found ourselves trying to understand what happened next, and what needed to be done, at exactly the moment when nobody had the energy to figure out a system.
We were fortunate. A fantastic family friend, who was a family law lawyer, helped walk us through the process and pointed us in the right direction. I’ve thought about that a lot since. We got lucky. Most families don’t have someone like that on speed dial.
That experience showed me how complicated estate administration can feel when you’re doing it for the first time — especially while you’re also grieving someone. And as a real estate broker, it occurred to me that a lot of my clients were eventually going to find themselves in the same position. Not as a hypothetical. As a Tuesday.
So I went and got trained. That’s part of what led me to become a Certified Executor Advisor.
I want to be precise about what that means, because the letters after a name should mean something specific. The CEA is a professional designation from the Canadian Institute of Certified Executor Advisors. It is not a legal credential, and it doesn’t make me your lawyer, your accountant, or your tax advisor. What it did was teach me how the real estate piece fits into the much larger machine of estate administration — so I can recognize when another professional needs to be in the room, and work properly with the team already around you.
That’s the whole job, really. I’m not trying to replace anyone on your professional team. I’m trying to be the person on it who actually knows what happens to the house.
What probate means in Ontario
Let’s start with vocabulary, because the words get used loosely and it causes real confusion.
“Probate” is the everyday word. Ontario’s own guidance uses it that way. The actual document is called a Certificate of Appointment of Estate Trustee, and the Ontario government describes probate as a procedure to ask the court to either give a person authority to act as estate trustee, or confirm the authority of the person named in the will. (ontario.ca — Apply for probate of an estate)
A note for anyone reading older articles: you’ll see “Certificate of Appointment of Estate Trustee With a Will” and “Without a Will” all over the internet. Those were separate forms once. Since the estate forms were overhauled, the ordinary case uses a single application form and a single certificate. (Separate forms still exist for small estates and for confirmations of appointment.) The phrases “estate trustee with a will” and “estate trustee without a will” still exist — but they describe the person, not the certificate.
You’ll also hear “executor,” “administrator,” and “estate trustee” used interchangeably. In Ontario’s court rules, “estate trustee” is the umbrella term covering an executor, an administrator, or an administrator with the will annexed. The older words aren’t wrong. They’re just not the words on the form.
Two more things worth knowing, because they get misquoted constantly:
- Estate Administration Tax. The first $50,000 of estate value is exempt, and above that it’s $15 for each $1,000 or part thereof. If you’re reading an article that says “$5 per $1,000 on the first $50,000,” that article is describing the rules for applications made before January 1, 2020. (Estate Administration Tax Act, 1998 · ontario.ca — Estate Administration Tax)
- The 180 days. There’s an Estate Information Return that has to go to the Ministry of Finance within 180 days. Here’s the part people get backwards: that clock starts after the estate certificate is issued. It is not a deadline to apply for probate. I’ve seen this stated the wrong way round in a lot of places, including in marketing material. (O. Reg. 310/14)
Does every estate property require probate?
No. And anyone who tells you otherwise is oversimplifying.
Ontario’s guidance is direct about it: “Probate is not always required in order to administer an estate. The type of assets in the estate usually determine whether an estate should be probated.” (ontario.ca)
That said — and this is where I have to be careful, because this is exactly the territory where a real estate broker should stop talking and a lawyer should start — the exceptions are narrower than the internet suggests. Here are the ones I can point to in Ontario government sources. Whether any of them applies to your property is a question for your estate lawyer, not for me and not for a blog post.
Joint tenancy and the right of survivorship
If the property was held in joint tenancy, it passes to the surviving joint tenant by right of survivorship. Ontario’s probate page frames the trigger for probate as real property “which does not pass to another person by right of survivorship” — which tells you the survivorship route sits outside it.
The survivor deals with title through a Survivorship Application under section 123 of the Land Titles Act, supported by an affidavit. For deaths occurring on or after March 1, 1986, Family Law Act statements are required as part of that application. (Bulletin 2000-6, Estate Documents · Survivorship Application, s. 123 Land Titles Act)
Two cautions I’d offer as a broker who has watched families get surprised by this:
Joint tenancy is not the same as “both names on title.” Property can be held as tenants in common instead, in which case each owner has a separate share that goes into their estate. The two look identical on a mailbox and behave completely differently on a death certificate. Check the deed. Don’t assume.
Survivorship solves this death, not the next one. It moves the property to the survivor. The survivor’s own estate is a separate problem for a later day.
The “first dealings” exemption and LTCQ properties
This one is real, it is genuinely useful, and it is described far too loosely almost everywhere I’ve read about it.
Some Ontario properties were moved from the old Registry system into Land Titles administratively — no application by the owner, no survey, no hearing. The government did it in bulk. Those parcels show a qualifier on title: LTCQ, or Land Titles Conversion Qualified. (Bulletin 2008-05, LTCQ Procedures)
For some of those properties, the land registration system will accept a transfer on death without requiring a Certificate of Appointment — the “first dealings after conversion” exemption. The Director of Titles’ published guidance says the exemption is generally available where, paraphrasing the supplement:
- the deceased owner acquired the property while it was still registered under the Registry Act;
- the property was converted to LTCQ and remains LTCQ; and
- the deceased still owned it at death, and died with a will.
(Director of Titles, First Dealings ERPG Supplement, Nov 26, 2021 · Memorandum EM200003)
Now the parts that get left out, which are the parts that matter:
- There is no equivalent exemption for someone who died without a will. The supplement says so in as many words: the exemption is only available for testate owners, and there is no equivalent or analogous exemption for deceased intestate owners. If there’s no will, this route is closed.
- It doesn’t apply if the property is Land Titles Absolute. If a previous owner upgraded title, the exemption is gone permanently.
- It is rarely available for condominiums. The supplement says so directly — most condominium units in Ontario were built on land that is already LT Absolute or LT Absolute Plus. If you’re dealing with a GTA condo, assume this route is closed until your lawyer tells you otherwise.
- “First dealing” means a transfer of the fee simple. A mortgage, a discharge, a notice, a lease or an easement registered since conversion doesn’t burn it. A previous sale does.
- It isn’t a shortcut with no paperwork. The supplement still requires specified statements on registration and a covenant indemnifying the Land Titles Assurance Fund, and the Director’s estate conveyancing memorandum sets out further affidavit requirements — including the value of the estate, confirmation that the will is the last will and that no certificate of appointment was applied for, and that the testator was of the age of majority when the will was executed.
- As best I can tell, it lives in registration guidance rather than in the Land Titles Act itself. I’d treat that as a reason not to build a plan around it. Your lawyer can tell you what it actually rests on.
You will find articles claiming Ontario has abolished this exemption. I looked hard for a government announcement, bulletin, statute or regulation confirming that, and I couldn’t find one — the current electronic registration guide still contains it. But I also can’t promise you it will be there next year. Every claim I found in either direction came from law firm blogs with nothing official behind them.
So: don’t plan around this without a lawyer. Whether your property qualifies is a title question, answered by someone looking at your actual parcel register.
Other routes
There are a couple of others I can point to, with the same caveat:
- Registry Act properties are handled differently. The Director of Titles memorandum describes the common Registry-system practice of registering a notarial copy of the will in the general register rather than applying for a certificate. (EM200003)
- Small estates. Ontario has a Small Estate Certificate process for estates of $150,000 or less, under a simplified rule. It can cover real property, but the assets have to be listed on the certificate — which matters, because a house tends to blow through $150,000 by itself in this market. (ontario.ca — Probate of a small estate; the $150,000 threshold is prescribed by O. Reg. 110/21, and the simplified procedure is Rule 74.1)
- There is an older land registration bulletin describing a waiver route where the total value of the estate is not more than $50,000, with a covenant indemnifying the Land Titles Assurance Fund. That bulletin dates from December 2000. (Bulletin 2000-6) I mention it only so you can ask your lawyer whether it’s still current practice, not because I’d rely on it.
The honest summary, and this is my observation rather than a rule: most GTA estates with a house in them end up needing probate. The exceptions are real but specific, and every one of them turns on facts a lawyer has to check.
The practical problem: authority to sell versus authority to close
Here’s where the real estate part starts, and here’s the thing I wish more executors understood before they call me.
Marketing a property and transferring a property are two different acts, and they have different requirements.
On the transfer side, my experience is that the land registry expects to see proof of the estate trustee’s appointment before it will register a transfer out of an estate — which is why the certificate tends to be the thing everyone is waiting on. The Director of Titles’ estate conveyancing memorandum is the guidance your lawyer will be working from here. (Memorandum EM200003) What your specific parcel requires is a title question, and your lawyer answers it, not me.
On the authority side, there’s a provision in the Estates Administration Act that I think every executor should read once. Section 17(7) deals mainly with administrators whose appointment is limited to personal property — but it closes with this: “…an executor shall not exercise the powers conferred by this section until the executor has obtained probate of the will except with the approval of a judge.” (Estates Administration Act, s. 17(7))
Read that carefully, because the scope matters. “The powers conferred by this section” are the section 17 powers — selling and conveying estate real property to pay debts or to distribute the estate. It isn’t a statement about everything an executor may ever do. But it is a probate gate sitting directly on top of the power most relevant to selling a house.
And Ontario’s own probate page, dealing with the situation where estate real property has to be sold, says a Certificate of Appointment or Small Estate Certificate “should be obtained before anyone enters into an Agreement of Purchase and Sale.” (ontario.ca)
I’m going to resist the temptation to translate that into a rule for your situation, because it isn’t my job and the wording matters. What I’ll say as a broker is this: the government’s published guidance points toward getting the certificate first, there’s a statutory provision gating an executor’s powers on probate, and the land registry generally wants proof of appointment before it will register the transfer. If someone is telling you to list next week and sort the paperwork out later, I’d want your estate lawyer to sign off on that in writing before you did it.
Why an outstanding probate makes buyers nervous
Now let’s leave the law alone and talk about what I actually do for a living: what buyers do when they see uncertainty.
This is my professional opinion as a broker, based on what I’ve watched happen. It isn’t a legal proposition and I’m not going to dress it up as one.
A residential buyer in Toronto is not primarily buying a building. They’re buying a date. Everything in their life hangs off that date — the movers, the mortgage funding, the kids’ school, the end of their lease, the closing on the house they just sold.
When a listing comes with a closing date that depends on a court process finishing, that date stops being a date and becomes an estimate. And here’s the thing about estimates: buyers don’t price them, they avoid them.
The buyer who already sold
This is the group that gets hurt worst, and it’s a big group in this market.
Picture someone who firmed up the sale of their own house three weeks ago. They have a closing date. It is not moving. Their equity, their financing, and their family’s housing all converge on that one day.
That person cannot buy your estate property with an uncertain closing. Not “won’t.” Cannot. If your closing slips and theirs doesn’t, they are homeless with a truck full of furniture. Their agent will tell them exactly that, and their lawyer will underline it.
In my experience these are frequently the strongest buyers in the market — motivated, financed, proven, already committed. And a probate-dependent closing removes them from your buyer pool in a single sentence.
Closing-date uncertainty compounds
It’s not only the estate’s own timeline. It’s everything downstream of it. Rate holds expire. Mortgage approvals get re-verified. Movers get rebooked at a premium. A buyer who has to extend twice is a buyer who is now paying for the privilege of buying your house.
Every one of those is a small reason to walk. Buyers rarely need a big reason.
What “subject to probate” does to the pool
When a listing carries a probate condition, or an extension right that lets the seller push the closing, the buyer’s agent reads it out loud and the conversation changes. Some buyers are out immediately. Some stay in but price the risk — which is a polite way of saying they offer less. Some stay in at full value but want protections the estate may not want to give.
I want to be careful here, because I’ve seen this claim overstated: it does not mean your property won’t sell, and it does not mean it will sell for dramatically less. It means fewer people compete for it. In a market where price is set by competition, that’s the whole ballgame.
13 offers versus 2: what I actually observed
I want to give you a real example, and I want to be honest about what it does and doesn’t prove.
I’ve been involved with estate properties that went to market with the estate’s authority settled and a clean, certain closing date. And I’ve been involved with estate properties that went to market with probate still outstanding.
On one of the clean ones, we received 13 offers. On one where the closing was tied to a probate that hadn’t come through, we received 2.
Now — I am not telling you probate caused that difference, and I’d be misleading you if I did.
Offer counts move for a lot of reasons. Neighbourhood. Price point. List price strategy. Time of year. Interest rates that month. Condition of the house. Whether there were three similar listings on the same street. How the photos turned out. Whether it rained on the open house. Two properties are never a controlled experiment, and any broker who presents them to you as one is selling you something.
What the example illustrates — and what lines up with every conversation I have with buyer agents — is the direction of the effect. Certainty invites competition. Uncertainty thins it. The size of that effect on any given house, nobody can tell you honestly in advance.
But 13 people bidding and 2 people bidding are different worlds, and the estate feels that difference in the final number.
Why more certainty usually means a better result for the estate
Put it together and the logic is simple.
An estate trustee’s job, broadly, is to gather in the estate, deal with debts and taxes, and distribute what’s left to the people entitled to it. (ontario.ca — Administering estates) When the largest asset is a house, “doing that job well” and “getting a good price for the house” are close to the same sentence.
A good price comes from competition. Competition comes from buyers who feel safe. Buyers feel safe when the seller can actually deliver on the closing date.
Waiting is not free — I’ll say more about the carrying costs in Part 3 — but in my experience the cost of waiting is usually smaller, and much more predictable, than the cost of marketing into a thin buyer pool.
What you can do while you wait
This is the part almost nobody writes about, and it’s the part that actually saves executors money.
Waiting for probate does not mean sitting still. Here’s what I do with executors during that window:
- Protect the asset first. Vacant property is an insurance problem before it’s a real estate problem. Call the insurer and tell them the home is unoccupied. In my experience vacancy gets treated differently by most insurers, and finding that out after something happens is an expensive way to learn it. Secure the property. Deal with keys, alarm codes, and anyone who still has access.
- Get the value documented. For the Estate Information Return, values are as at the date of death, and the Ministry of Finance guidance says to use the appraised value at the date of death even if the property later sells for more or less. It also says you need to be able to demonstrate values through supporting documents. (ontario.ca — Estate Administration Tax) Get this documented while the house is still in its date-of-death condition. This is exactly what the complimentary Letter of Opinion of Value I do for executors is for.
- Deal with the contents. This takes far longer than anyone expects, and it’s the single biggest driver of how the house shows. Start early. Sequence any contents auction before listing photos, not after.
- Fix the obvious things. Not a renovation. The three or four things every buyer will notice and mentally over-charge you for.
- Watch the calendar for Toronto’s Vacant Home Tax and the utility/heat minimums a vacant house needs through winter.
- Line up the team. Estate lawyer, accountant, and the real estate side, talking to each other before anything is urgent.
Do that work during the wait, and the day the certificate arrives you list a prepared house into a full buyer pool with a date you can actually promise. That’s the whole strategy.
For the wider view of the job — preparing the property, pricing it, budgeting the costs and choosing who to work with — see the executor’s guide to selling an estate home in Toronto.
Frequently asked questions
Can an executor sell a house before probate in Ontario? There’s a provision in the Estates Administration Act (s. 17(7)) stating that an executor shall not exercise the powers conferred by that section until probate is obtained, except with a judge’s approval — and Ontario’s guidance says a certificate should be obtained before anyone enters into an Agreement of Purchase and Sale. Whether a specific sale can proceed depends on the will’s terms and the title requirements, and that’s a question for the estate’s lawyer.
Can you list a house before probate is granted? Listing and closing are different acts with different requirements. Ontario’s published guidance points one way — it says a certificate should be obtained before anyone enters into an Agreement of Purchase and Sale. How that applies to a particular property is a title and authority question, which is precisely why I want your estate lawyer’s view in writing before you market a property with an outstanding probate. What I can tell you as a broker is what happens to buyer behaviour when you do — which is most of this article.
Does every estate property need probate in Ontario? No. Ontario’s own guidance says probate is not always required, and the asset type drives it. Jointly held property passing by survivorship, certain LTCQ properties under the first dealings exemption, Registry Act parcels, and small estates all sit outside the default. Each is narrower than it sounds and each is a question for a lawyer.
How long does probate take in Ontario? Ontario publishes a service expectation: applications are typically processed within 15 business days (ontario.ca), and small estate applications usually within five (ontario.ca). I’d treat those as the court’s processing window, not as the total elapsed time from a death to a certificate in your hand — gathering documents, valuations and consents is usually the longer part. You’ll see everything from “6 weeks” to “12 months” quoted online with no source behind it. I’m not going to add another unsourced number to that pile.
Who pays the mortgage, taxes and utilities while probate is pending? In practice the carrying costs come out of the estate — confirm with your lawyer how that works in your situation. Budget for mortgage or line of credit payments, property tax, utilities, insurance at a vacancy rate, lawn and snow, and Toronto’s Vacant Home Tax where it applies. This is real money and it belongs in the decision.
Do all the beneficiaries have to agree to the sale price? It depends on why you’re selling. The Estates Administration Act draws a distinction between a sale to pay debts and a sale made for the purpose of distribution only, and the concurrence requirements are different. (EAA s. 17) Your lawyer will tell you which situation you’re in. My practical advice is separate: get everyone in the same room on price before you list, not after an offer arrives.
Coming up in Part 2
Everything above is written from the estate’s side of the table. But there’s another side, and it’s more interesting than most people expect.
The same uncertainty that thins out your buyer pool is exactly what creates an opportunity for a particular kind of buyer. In Part 2, I’ll tell you about a client of mine who walked into a dark, cluttered, overwhelming house that most buyers couldn’t see past, and what happened next.
(Part 2 will be linked here once it’s published.)
Dealing with an estate property in Toronto or the GTA? If you’d rather talk it through than read about it, call or text me at 647-281-5411. The first walk-through is complimentary — I’ll tell you what needs attention now and what can wait, and if the answer is “you need a lawyer before you need a realtor,” I’ll tell you that too.
Taylor Greene CEA CD · Broker · Royal LePage Estate Realty, Brokerage
Important note
I’m a real estate broker and a Certified Executor Advisor. I am not a lawyer, an accountant, or a tax advisor, and nothing in this article is legal, tax or estate-administration advice. The CEA designation is a professional designation from the Canadian Institute of Certified Executor Advisors — it is not a legal credential and it does not authorize me to advise you on your legal rights or obligations. Ontario law and land registration practice change, and every estate is different. Please get advice from an Ontario estates or real estate lawyer about your specific situation. Where I’ve stated something as Ontario law, I’ve linked the government source so you and your lawyer can check it yourselves.
Not intended to solicit persons currently under a real estate contract.