Who controls the land after a death
When a landowner dies, the Wills, Estates and Succession Act (WESA) vests the land in the personal representative, the executor named in the will or an administrator appointed by the court, unless someone else takes it by survivorship. That person holds it on trust for whoever is entitled under the will or the intestacy rules, and must administer it in the same way as any other estate asset: keep it safe, pay the debts and expenses that fall on it, and account for it.
Two consequences follow. First, a beneficiary named to receive the property cannot simply move in or take it over; the executor is in control until the land is transferred. Second, where there are two or more executors, a sale or transfer of the land by only some of them is not valid without the court’s approval, so co-executors need to agree on the property before they act.
Why nothing moves until the grant issues
The Land Title Act stops the Land Title Office from registering the executor or administrator as owner of the deceased’s land unless a certified copy of the grant of probate or administration (or, in limited cases, a court order appointing an administrator and vesting the land) is filed. Until that registration, the executor cannot give a buyer good title. A sale can be negotiated in the meantime, but completion has to wait.
Getting the grant takes the standard route: the executor notifies the beneficiaries and family on Form P1, waits 21 days, and files the will, a wills registry search, an affidavit listing the assets and liabilities, and the fee. Any Supreme Court registry will accept the filing; from Celtic Avenue, the Vancouver Law Courts on Smithe Street are roughly 10 km by road. Because the fee is based on the gross value of what passes through the estate, the land needs a realistic market value from the outset. Our article on what happens when a person with debt dies explains how debts secured on the land are dealt with.
These steps are for land the deceased owned alone. Where title was shared, a title search shows the form of ownership, and the process may differ.
Looking after the property in the meantime
Between the death and the sale or transfer, the executor is responsible for the property. On a larger lot that can mean more than locking the door.
- Insurance and security: Tell the insurer about the death straight away and ask what the policy requires if the house is empty. Arrange regular checks of the house and outbuildings.
- Animals: Horses, livestock or pets are estate property. The executor has to arrange their care, paid for from the estate, until they go to the person the will names or are sold or rehomed. If the will is silent, take advice before deciding.
- Equipment and contents: Vehicles, tools and tack in barns and sheds belong to the estate and should be listed and kept secure with everything else.
- Bills and maintenance: Property taxes, utilities and essential repairs are estate expenses. Keep receipts; the beneficiaries are entitled to see how the money was spent.
- Records: A dated set of photographs and an inventory taken early protect the executor if anyone later questions what was on the property.
When part of the property is rented
If the deceased rented out a suite, a cottage or another part of the property, the tenancy does not end with the death. The Residential Tenancy Act treats the landlord’s personal representatives as the landlord, so the executor takes over the landlord’s rights and duties: collecting rent into the estate account, holding the security deposit, making repairs and respecting the tenant’s right to quiet enjoyment. A tenancy can end only in the ways the Act allows, so a plan to sell with vacant possession, or to let a family member move in, has to fit those rules and the notice periods they set. Do not change locks, cut off services or ask a tenant to leave informally. Tenancy rules change from time to time, so check the current requirements before serving any notice.
If a surviving spouse lives on the property
Where the deceased left a spouse living in the home, check whether the will deals with the home. If there is no will, or the will does not give the home to anyone, WESA gives the surviving spouse a right to acquire the “spousal home” from the estate towards their share. The executor must tell the spouse about that right when applying for the grant, and the spouse has 180 days from the grant to exercise it by written notice, unless the court extends the time. During that period the executor must not sell the home without the spouse’s written consent, except where the other assets, and a mortgage on the home, would not cover the estate’s debts. The spouse’s notice states the value they place on the deceased’s interest in the home at the date of death; if the executor disagrees, the executor answers in writing with their own figure, and either of them can ask the court to fix the value. Where the spouse is also the only executor, the value has to be agreed in writing by the descendants who share in the estate (and the Public Guardian and Trustee for any minor or incapable descendant) or set by the court. The statutory definition requires, among other things, that the parcel is not leased to another person, so on a large lot with tenants, whether there is a “spousal home” at all, and how it is valued, are questions for advice.
Keep it or sell it
The will decides first. A specific gift of the property to one person is honoured by transferring the land to them after the estate’s debts and costs are covered; WESA also lets the executor transfer it with a charge registered for an amount the estate still owes. If the will leaves everything to be divided among several people, the executor has to decide, in the interests of all of them, whether to sell the land or, if the will allows and the beneficiaries agree, transfer it to one or more of them in kind.
Disagreements can start here. One child may want to keep a family property; others may want their share in money. An executor faced with a genuine question about how to manage or dispose of estate land can apply to the court for directions instead of guessing. Where a beneficiary believes the executor is selling too cheaply, or is favouring one person, the estate litigation team can advise on the remedies, including removal of the executor in serious cases. See also what to do when the executor is not communicating with beneficiaries.
When the land was left to one person
A will that leaves a valuable property to one child, or away from a spouse, can be challenged by a spouse or child under the wills variation provisions of WESA. The court can order the provision it considers adequate, just and equitable where the will does not make adequate provision for the claimant’s proper maintenance and support. The claim must be started within 180 days after the grant issues, and while that period runs, and for 210 days from the grant, the executor should not hand over the property without the consents or court order WESA requires. Our article on a moral obligation to a child not met by benefiting grandchildren is one example. Where someone claims the deceased promised them the property, or that they paid for or improved it, the claim may be in unjust enrichment; our note on the remedy for unjust enrichment, money or property explains what a court can award.
If you own a property like this
A will for a property with tenants, animals or several buildings should say more than who inherits the land. It can name an executor who is able to manage a tenancy and deal with livestock, say what should happen to animals and equipment, and say whether the executor may keep the property for a time or must sell. If you want a family member to be able to deal with the property if you lose capacity, an enduring power of attorney that is to be used for land has to be signed and witnessed in the way the Land Title Act requires. Our estate planning group prepares wills and powers of attorney with these points in mind.
Who you will work with
Grant applications and advice to executors on the land come from Veronica Manski, associate counsel in probate and estate administration. Wills and powers of attorney are led by Sandy Minh Abley. Contested matters are run by Candace Cho, KC, principal and estate litigation practice leader (she and Judith A. Janzen joined forces in 2012), with TJ Garcha, Julia Pinnock, Valerie LeBlanc, Jesse Patrao, Katya Richardson, Jackson Todd, Louisa Ledesma and Kevin Campbell.
For a separation involving a Southlands property, see our Southlands family lawyers.
Common questions
Can the property be sold before probate is granted?
A buyer can be found and a contract signed, but the sale cannot complete until the grant issues and the executor is registered as owner at the Land Title Office.
My father’s tenant is still living in the suite. Does the tenancy end?
No. The executor steps into the landlord’s position, collects rent for the estate and must follow the Residential Tenancy Act to end the tenancy.
Who pays to look after the horses until they are rehomed?
The estate. Reasonable costs of caring for estate property, including animals, are estate expenses. Keep records and receipts.
My brother wants to keep the property; the rest of us want it sold. Who decides?
The will first. If it leaves the decision to the executor, the executor must act in the interests of all the beneficiaries, and can ask the court for directions if there is a genuine question.
What does it cost to talk to you first?
Nothing for the first half hour on an estate dispute. For probate or planning work, call (604) 900-2538 and we will explain the fee for a first meeting.
