Probated or Not Probated: Land (Real Property)
Neufeld Legal P.C. can be reached by telephone at 403-400-4092 or email Chris@NeufeldLegal.com
When an individual dies owning land, be it residential or commercial real estate, or other forms of real property such as mineral rights or oil and gas rights, the executor of the deceased person’s estate will need to effect the land transfer with the Land Titles Office that has legal purview over that land.
And to effect that land transfer, the executor of the deceased person’s estate will need to consider whether or not the Land Titles Office will require the estate to be probated or not, such that the appropriate procedure is undertaken to settle the deceased person’s estate (in Alberta, an estate is probated with a valid will; however, where there is no will or the will is inadequate, the process is administration and attaining a Grant of Administration).
To understand how land ownership can require probating the estate or not, we review the stated position taken by a Land Titles Office, namely the Alberta Land Titles Office, to provide an understanding of where to look and how one proceeds with this process.
The key consideration in determining the need for probate with respect to land, is whether the deceased person (i) owned the land alone or in common with other persons (tenants-in-common) or (ii) if they owned it jointly with another person that had a right of survivorship.
If we are to consider that the default ownership position is all holdings that are not joint ownership, and that this default ownership position generally requires that the deceased person’s estate be probated; with an exception to the default ownership position arising where the required conditions of joint ownership are met, such that the Land Titles Office provides a procedure to effect the land transfer without the necessity of probate.
The initial filing with the Alberta Land Titles Office to effect the transfer of land from a deceased person’s estate is the Application for Transmission to Personal Representative, which requires the executor to “attach a copy of the Grant of Probate, Grant of Administration, or Court Order certified by the Clerk of the appropriate Alberta Court.”
As such, the default ownership position requires that the executor of the deceased person’s estate undertake the probating or administration of the estate and have received a Grant of Probate, Grant of Administration or other Court Order that judicially authorizes the transfer, without which the Alberta Land Titles Office will not proceed.
This differs from the process for property held in joint tenancy, which is an exception to the default land ownership process, for as the Albert Land Titles Office explains it:
An application to remove a joint tenant on a property who has passed away is regulated under the Land Titles Act. On the death of one joint tenant, their interest in the land passes to the other joint tenant(s) by the right of survivorship, eliminating the need for an Executor or Administrator to deal with the transfer of their interest.
This is undertaken instead by the surviving joint owner filing a Statutory Declaration Re: Proof of Death, together with a copy of the death certificate. With respect to the discharge of mortgages, caveats and other instruments on land, we find a similar approach with a general practice requiring probate and an exception for land that is held in joint tenancy:
A mortgage must be transmitted to the personal representative of a deceased mortgagee before a discharge of the mortgage executed by the personal representative is registrable. The formal application to transmit the instrument is not required when the instrument is subsequently being discharged, a certified copy of probate will suffice to transmit the instrument. If the mortgagees are joint tenants, a discharge by the surviving joint tenant can be registered if it is accompanied by acceptable evidence of death.
The critical aspect is therefore how the land was held, which dictates whether it requires the deceased person’s estate to be probated or not, recognizing that just because the land might be transferred without the need for probate, there might be other reasons that necessitate, or would be beneficial to, probate or administer the deceased person’s estate, being a worthwhile discussion with a knowledgeable lawyer as to how best to proceed.
Contact our law firm today to learn how our legal team can help you with the legal demands following the death of a loved one, from probating the decedent's last will & testament to administering an estate where the decedent did not have a valid will. Contact our law firm at 403-400-4092 or via email at href="mailto:chris@neufeldlegal.com">Chris@NeufeldLegal.com to schedule a confidential initial consultation.
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