Look through all best online home listings and you will often find a few Comox Valley estate sales listed. When buying from an estate, there are a few things that are different with such a sale. Having said this, a competent real estate agent should be familiar with the differences, and should be able to provide you with the advice and help necessary to ensure a smooth transaction. Note, however, that real estate agents do not provide legal advice – seek the advice of a lawyer for legal advice.
In very basic terms, an estate consists of what was owned by the person who died. Real property is often part of an estate. An executor is the person named in a will who is responsible to gather up the assets of the estate, pay the debts of the deceased person, and divide the residue (remainder after the debts are paid) of the estate among the beneficiaries. Where no executor is named (and in some other circumstances) the court may appoint an administrator of the estate.
If a deceased person owned land or a home in joint tenancy with another person, the executor will file an application with the land Title Office along with a death certificate to register the land in the name of the surviving joint tenant. However, there are situations and circumstances within which the executor will have to apply for probate in order to deal with certain types of assets in an estate such as property. Probate is the process of obtaining a court ruling that a will is legally valid.
When a Comox Valley property is to be sold by an estate and probate is required, an offer to purchase the property will be subject to the granting of probate by the court. In practice, this means that the completion date established and agreed to in the contract of purchase and sale between the buyer and the executor is dependent on the completion of probate. The key here is for a purchaser to be flexible on completion dates since probate may take longer than the executor anticipates.
It is interesting to note that the British Columbia Wills Variation Act (RSBC 1996 – chapter 490) makes provision for a child or spouse of the deceased to apply to the court to amend or change the terms of the will within six months of the granting of probate. In practice this means that the executor must obtain releases from all people who are entitled to apply under this provision before proceeding with any distribution of the estate within the six month period.
For these two reasons above (the requirement for probate and the provisions of the Wills Variation Act) the subject to clause inserted into a Contact of Purchase and Sale for the benefit of the Seller will: address the requirement for a grant of letters probate (or letters of administration when circumstances necessitate the appointment of an administrator of the estate to perform duties similar to those of an executor) which will allow the property to be sold; and provide assurance that everyone entitled to claim under the Wills Variation Act has waived or released their claims to the property. Comox Valley estate sales are a bit more complicated than a routine home sale.
This blog only touched on a few of the responsibilities of the executor of a Comox Valley estate involving real property. As well, the blog very briefly introduced the requirement for probate for some situations and circumstances involving property within an estate. Clearly, both issues are more involved and they vary according to the individual circumstances of each specific estate. Your lawyer can provide you with much more information on both subjects.
The take-away from this blog should be that purchasers should not shy away from purchasing property from an estate merely because the property is listed as an estate sale. Should you be considering the acquisition of such a property and you require real estate advice and/or assistance contact me to discuss your real estate needs.
by Brett Cairns