Can You Sell Before Probate? Sometimes

Reading Time: 5 minutes

If you’re handling the sale of an estate property, you’re dealing with estate trustees.

But before that property can actually be transferred, those trustees need to be officially appointed. That means applying to the court for a Certificate of Appointment of Estate Trustee (commonly called “probate”).

And like most legal processes, it's not quick.

Applications can take many months — longer if there are delays or errors in the paperwork.

Most of the time, you have no choice but to wait until the CAET is granted before you can legally sell the property.

But in some particular cases — there's an exemption.

The First Dealings Exemption

In Ontario, the First Dealings Exemption allows estate trustees to transfer a property without a CAET (Probate).

Certain criteria need to be met for the exemption to apply:

• The property must have LTCQ status;
• There must be no prior "Dealings" since the property's conversion to Land Titles; and
• The deceased muse have had a valid Will

Some context...

LTCQ — or Land Titles Conversion Qualified — means that the ministry automatically converted the property from the old Registry system to Land Titles.

This is pretty common and you confirm this by reading the title search.

Once you've confirmed that the property is LTCQ, look for a "Date of Conversion" on the title search. If there have been no Dealings since that date, the property should qualify for the exemption.

What is a Dealing?

Well, in the words of the late Director of Titles:

"There is no public definition of what exactly constitute[s] a ‘first dealing"

Helpful, I know... but here's what we do know:

• A Sale is considered a dealing.
• A Mortgage is not considered a dealing.
• Certain Transfers (such as to sever a joint tenancy into tenants-in-common, or to convey a property between spouses as a result of divorce) are not considered a dealing.
• A Discharge is not considered a dealing.

There are more nuances to this but honestly — it's not important for you, as Realtors, to memorize what is or isn't a Dealing.

What is important is being able to recognize the situations where the exemption might apply — and point your clients to a lawyer who can confirm.

So, if you’re dealing with an estate client and you know the deceased:

• Purchase the property before the year 2000;
• Still owned it at the time of death; and
• Died with a Will...

There's a decent chance they might qualify.

I regularly review title for estate trustees and Realtors to determine whether this exemption is available.

If you’re handling a potential estate sale and aren’t sure what’s possible, reach out — we’ll take a look at title and walk you through the options.

P.S. The First Dealings Exemption can sometimes result in no probate fees — but that depends on the other assets in the estate and how the Will was structured. For the sake of space, I’ll save that explanation for another time.