Real Estate

Real estate represents the largest part of most estates

Often the reason for probate is that real estate is in the name of the testator and the only way that the property can transfer to the executor for sale is by way of probate. The reason being, despite there being a Will in place, the property cannot be transferred to a new owner through the Land Title Registry as the executor needs to have legal ownership over the property.

In the result, the executor has to go through the cumbersome process of seeking appointment as the Executor/Administrator of the Estate and after that, can have the title to the property transferred to the executor in care of the Estate.

The above applies where the testator owns the real estate alone or in “tenants in common”. If the real estate is owned in “joint tenancy” with another person, the property can be easily transferred to the co-owner outside of probate.

The only way the executor can collect the property back into the estate is by consent of the co-owner or if a “presumption of resulting trust” is made out in Court. For more details on the test for a “presumption of resulting trust” please review the section on that topic.

In summary, the key is to look at how the testator owned the real estate, whether in joint tenancy, tenants in common or alone. The type of ownership will determine whether or not the real estate forms part of the estate for ultimate distribution to the beneficiaries under the Will.