Can an Executor Sell a House Before Probate in Alberta?

Short answer: an executor in Alberta generally cannot complete the sale or transfer of a deceased person’s house until a Grant of Probate is issued. However, there are lawful and practical steps an executor can take before probate to prepare for and even conditionally enter into a sale.

This article explains the rule, the exceptions, and the practical process executors should follow.

The Legal Rule in Alberta

In Alberta, an executor’s authority technically flows from the will, not the court. In practice, however, third parties do not recognize that authority without probate.

Specifically:

• The Alberta Land Titles Office will not register a transfer of real property based solely on a will.

• Buyers, lenders, and real estate lawyers require a Grant of Probate before closing.

• As a result, title cannot be transferred and the sale cannot complete before probate.

Bottom line:An executor may prepare for or negotiate a sale, but cannot complete the transaction or convey title until probate is granted.

Key Exceptions

There are limited situations where probate is not required:

1. Joint Tenancy

If the property was held in joint tenancy, the deceased’s interest passes automatically to the surviving joint tenant by right of survivorship. Probate is not required for that transfer.

2. Binding Agreement of Purchase and Sale Signed Before Death

If the deceased entered into a binding agreement for sale before death, the executor is generally obligated to complete it. Even then, probate is usually still required to register the transfer at Land Titles.

What an Executor Can Do Before Probate

Although closing must wait, Alberta executors can take several practical steps before probate is issued.

1. Confirm Title and Ownership

• Obtain a current Certificate of Title.

• Confirm whether the property is held in joint tenancy or solely in the deceased’s name.

• Review the will for any express power of sale (most modern wills include this).

  
  

2. Secure and Insure the Property

• Change locks if appropriate.

• Confirm home insurance remains valid after death.

• Notify the insurer that the property is now part of an estate.

  
  

3. Obtain a Date-of-Death Valuation

• Order a professional appraisal or market evaluation.

• This is critical for:

  • Probate reporting

  • Capital gains tax calculations

  • Defending the sale price against beneficiary complaints

    
    

4. List the Property for Sale

• The executor may list the property with a realtor before probate.

• Listings should clearly state that the sale is subject to probate.

  
  

5. Accept an Offer Conditional on Probate

• The executor may sign an Agreement of Purchase and Sale that includes:

  • A condition precedent for the issuance of a Grant of Probate

  • Extended closing timelines

  • The executor signing “as executor of the Estate of [Deceased]”

This is common and commercially acceptable in Alberta.

6. Apply for Probate Immediately

• File the probate application as soon as possible.

• Delays in probate delay closing and may expose the estate to claims from buyers if timelines are missed.

  
  

7. Close After Probate Is Granted

Once probate issues:

• The executor’s lawyer registers the probate documents at Land Titles.

• Title is transferred.

• Sale proceeds are paid into the estate account.

Risks of Selling Too Early

Executors should avoid attempting to close before probate because:

• Land Titles will reject the transfer.

• The buyer’s lender will not fund.

• The executor may face personal liability if they exceed their authority.

• Beneficiaries may challenge the transaction.

Careful drafting and proper sequencing prevent these issues.

Practical Takeaway for Executors

In Alberta:

• You cannot complete a house sale before probate.

• You can list, negotiate, and accept a conditional offer.

• Probate should be treated as a critical path item, not an afterthought.

Handled properly, the property can be marketed while probate is pending, minimizing delay without exposing the executor to risk.

If you're the executor of an estate, book a free consultation to learn how we can assist you.

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