Valuable art, a treasured curio cabinet, the family cottage -- as estate trustee, it may fall to you to arrange estate sales, online or through a real estate sale lawyer when someone you represent passes on. Axess Law can advise you on executor rights and obligations for Ontario estate sales.
The tasks ahead are many, from taking inventory to:
- scheduling and advertising sales
- appraising and pricing possessions
- getting real estate valuations
- cleaning house or hiring estate sale planners
- and donating or recycling unwanted items.
What is an Estate Sale?
Liquidating financial or real property assets a deceased Will maker (or testator) has left behind can be necessary to settle debts or liabilities. Be assured as estate trustee you can take whatever steps you need to discharge debts and invest estate funds to generate income to distribute to beneficiaries.
Ontario estate law, the Succession Law Reform Act, gives you a legal obligation to be prudent, diligent and wise in managing a deceased's estate. Assets must be sold for fair market value or distributed as intended. Beneficiaries' permission is not required for non-bequeathed items and you can use estate resources to fund a sale or pay legal fees if disputes arise.
Axess Law Wills and estate lawyers can help you understand what assets require probate before an estate sale. If probate is required, you will need a certificate of appointment as estate trustee to acquire a legal interest in the deceased's property. We help you apply to probate court as estate executor.
Making Estate Decisions
Many Wills are vague and leave no specific directions on how to distribute a deceased's estate. It's up to you as estate trustee to decide what assets to sell, rent or invest to make income to pay legally required estate administration taxes, mortgages, property taxes, debts or court settlements.
While family and friends can be attached to possessions that bring back memories, estate trustees must act independently. Your task is to administer the Will exactly as written, honouring the deceased's final wishes. You can only sell items bequeathed in a Will if it becomes necessary to pay debts or legal obligations. Any estate "residue" or leftover proceeds can then go to the beneficiaries.
Estate Sales in Ontario Without Wills
If the deceased died intestate, without a Will, next-of-kin, friends or anyone with an interest in the deceased's estate may go to probate court for permission to represent them. You will require a certificate of estate trustee without a Will before organizing any estate sale or otherwise distributing assets. Property and personal possessions will otherwise be disposed of by a court-appointed trustee, who will make decisions based on Ontario estate laws.
Selling Estate Homes
Many Ontario residents have significant real property holdings. Their estate may include a family home with a common law partner, matrimonial homes or property they owned solely or with others. Your responsibility as estate trustee is to determine who owns the deceased's real property and what to do with it.
If the deceased was sole owner, the Will may have specific instructions on how to dispose of real estate. Properties may be left to specific parties or sold and proceeds distributed equally to beneficiaries. If the owner died intestate without a Will, the property automatically becomes part of the estate and is sold for the benefit of legally married spouses, children or other next-of-kin, in order of priority determined by an Ontario court.
A legally married spouse or common law partner who is joint owner stays on the property title when a spouse dies. Title reverts to them as next owner and they have the right of survivorship to keep the home. Probate and estate administration tax are not required and the title is simply amended by showing proof of death and joint ownership.
Common law partners not on the property title or where there is no Will have no legal claim to family homes. But they may file a dependant support claim in probate court if their spouse failed to provide financially for them.
Joint tenancies with adult, financially independent children can be complicated. Axess Law can advise you how to proceed in case other beneficiaries go to court to argue the home was being held in trust for the estate.
Two or more people or corporations that own property jointly have a divided interest in real property, which reverts to their estate when they die. Ownership can be equal or a percentage based on their contributions. Check with Axess Law before acting. The deceased may have left directions in their Will or, if they die intestate without a Will, a probate court application may be needed to legally dispose of tenant-in-common properties.
Axess Law can advise you on inheritance rights for legal owners and tenant rights under the Ontario Residential Tenancies Act. Ask us if you have questions.
Court Permission for Real Estate Sales
Before signing any agreement with a realtor, ensure the Will gives you power to sell or you have court permission, called licence to sell Ontario estate property. Probate court authorization helps ensure the property title is clear of debts or claims by an estate or beneficiaries. Buyers may require this assurance to get title insurance and licence to sell signals you are acting in a fair and proper manner. Axess Law's Ontario real estate attorneys can discuss the steps you need to take.
Selling Personal Property in an Estate Sale
Sales of securities like stocks and bonds or personal possessions like jewelery, antiques or vehicles can also generate income for creditors or to distribute to beneficiaries. Check with us on:
- accessing bank or brokerage accounts
- getting original copies of stock and bond certificates
- arranging legal permissions to sell personal possessions
- or proving you got fair market value for assets.
Remember, you do not need beneficiaries' consent to sell or give away possessions according to a Will's instructions. But you may be challenged in court if beneficiaries disagree with your decisions or appointment or believe the deceased was coerced or influenced while making their Will.
Find Ontario Estate Lawyers
Axess Law real estate lawyers offer advice on estate sales in Toronto by convenient remote video call or can meet in person at any of our Greater Toronto Area law offices. Book legal appointments online (it takes minutes of your time) or call our 1-647-479-0118 lawyer line for Wills and estate lawyers near you who can discuss estate trustee obligations in Ontario.