When a homeowner dies and there is no co-owner with a right of survivorship, then the ownership interests of the deceased will be determined by the laws dealing with Estates. If the deceased left a valid Will, then his interests would be dealt with in accordance with the instructions found in the Will. If the deceased did not leave a valid Will, then his interests would be dealt with in accordance with the laws dealing with intestacy.
Procedurally, whether there is a Will or not, the usual first step in dealing with the deceased’s interests is to transfer the deceased’s title to his estate trustee. This is the person who is appointed either by the deceased or by Court to administer the deceased’s estate. The document that is typically used for this purpose is called a Transmission by Personal Representative – Land (sometimes called a “Transmission Application”), and is prepared and registered by a real estate lawyer.
Before the estate trustee can register a Transmission Application, he must first have evidence of his authority to act on behalf of the estate. This evidence usually comes in the form of a Certificate of Appointment of Estate Trustee, either with or without a Will (sometimes referred to as “probate”). The Certificate can be applied for through the Estates Court for the jurisdiction where the deceased last resided.
In some cases, it may be possible to avoid the requirement for obtaining a Certificate of Appointment of Estate Trustee (and the payment of the estate administration tax). Where a property has been converted from the old Registry System to the new Land Titles system by the Ministry of Government Services, and there has been no “dealing” with the property since the date of conversion, an estate trustee named in the Will of the deceased may apply for the registration of a Transmission Application without obtaining a Certificate of Appointment of Estate Trustee. A real estate lawyer can determine whether this option is available, and prepare the required documents to take advantage of it.
In my next article, I will discuss what happens after title is registered in the name of the estate trustee.
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