1. What Does Probate Mean for a House?

2. What Does Alberta Law Say?

3. How the Probate Process Affects a House

4. Can Someone Live in the House During Probate?

5. Can an Executor Sell the House Before Probate Is Complete?

6. Common Mistakes

7. Costs and Considerations

8. When Should You Speak With an Estate Lawyer?

9. How Bridgestone Law Can Help

Introduction

For many Alberta families, the family home is the most valuable asset in the estate. After a loved one dies, it is common for family members to wonder what happens to the house. Can someone continue living there? Can the executor sell it immediately? Does the property have to wait until probate is complete? What happens if the will leaves the house to one beneficiary, but several family members have an interest in it?

The answer depends on several factors, including how the property was owned, the terms of the will, and whether probate is required. If the home was owned solely by the deceased, it will often form part of the estate and the executor becomes responsible for protecting and managing it during the probate process. Depending on the circumstances, the property may ultimately be transferred to a beneficiary, sold to pay estate debts or divide the estate, or sold because the will directs that it be sold.

Throughout the probate process, the executor has an important legal duty to preserve the property's value. This often includes maintaining insurance, securing the home, paying ongoing expenses such as utilities and property taxes, arranging necessary maintenance, and ensuring the property is properly cared for until it can be transferred or sold.

Understanding how probate affects real estate can help families make informed decisions while avoiding unnecessary delays, disputes, or financial loss.

What Does Probate Mean for a House?

Probate does not change ownership of a house by itself.

Instead, probate confirms the executor's legal authority to deal with property that forms part of the estate.

If the home was owned solely by the deceased, probate often allows the executor to:

• deal with Land Titles requirements;

• list the property for sale where appropriate;

• transfer ownership to a beneficiary if the will requires it;

• complete legal documents on behalf of the estate; and

• protect the property's value while the estate is being administered.

Until the property is transferred or sold, it generally remains an asset of the estate.

What Does Alberta Law Say?

Under Alberta's Estate Administration Act, a personal representative has a duty to administer estate assets honestly, in good faith, and with the care, diligence, and skill of a reasonably prudent person.

When an estate includes real estate, this means the executor must take reasonable steps to preserve the property's value and administer it in accordance with the will and applicable law.

If probate is required, the executor will generally obtain a Grant of Probate before Land Titles or other third parties recognize their authority to transfer or sell property owned solely by the deceased.

The executor must always act in the best interests of the estate and its beneficiaries when making decisions relating to the property.

How the Probate Process Affects a House

Step 1: Determine How the Property Was Owned

The first question is whether the house actually forms part of the estate.

For example:

• if the property was owned solely by the deceased, it will generally form part of the estate;

• if it was held in joint tenancy with a right of survivorship, ownership may pass automatically to the surviving joint owner, subject to the circumstances and applicable law;

• if the property was owned as tenants in common, only the deceased's ownership interest generally forms part of the estate.

Determining ownership is one of the executor's first responsibilities.

Step 2: Secure the Property

Immediately after death, the executor should take reasonable steps to protect the home.

This commonly includes:

• changing or monitoring locks where appropriate;

• ensuring adequate insurance remains in place;

• notifying the insurer if the home will be vacant;

• arranging regular inspections;

• maintaining utilities where necessary;

• collecting mail;

• protecting valuables; and

• preventing avoidable damage.

Failure to properly maintain the property can reduce its value and, in some circumstances, expose the executor to criticism or personal liability.

Step 3: Continue Managing the Property

Until the property is transferred or sold, ongoing expenses usually continue.

The executor may need to arrange payment of:

• mortgage payments;

• property taxes;

• insurance premiums;

• utilities;

• condominium fees;

• snow removal and landscaping;

• necessary repairs; and

• security or monitoring costs.

These expenses are generally paid from estate funds where available.

Step 4: Decide Whether the House Will Be Sold or Transferred

The will usually determines what ultimately happens to the property.

For example, the will may direct that:

• the home be transferred to a named beneficiary;

• the home be sold and the proceeds divided among beneficiaries;

• the executor has discretion to decide whether selling the property is appropriate; or

• the property be retained temporarily while the estate is administered.

If the will leaves the home to a specific beneficiary, the executor generally should not sell it simply because doing so would be more convenient unless the law or the circumstances require otherwise.

Step 5: Complete the Transfer or Sale

Once the necessary legal requirements have been satisfied, the executor may complete the transfer or sale of the property.

This typically involves working with:

• a real estate lawyer;

• a realtor, if the property is being sold;

• the Land Titles Office;

• mortgage lenders, where applicable;

• accountants regarding tax implications; and

• beneficiaries.

Whether the property is transferred or sold, the executor should retain complete records of every transaction.

Can Someone Live in the House During Probate?

Yes, depending on the circumstances.

There is no Alberta law that automatically requires a house to remain vacant during probate. Whether someone can continue living in the home depends on factors such as:

• the terms of the will;

• who is occupying the property;

• whether the occupants have a legal right to remain;

• the needs of the estate; and

• whether continued occupancy is in the estate's best interests.

For example, a surviving spouse, an adult child, or a tenant may continue living in the property depending on their legal rights and the circumstances.

However, if the executor allows someone to occupy the home without legal authority or without considering the interests of the estate, disputes can arise.

If someone remains in the property during probate, the executor should carefully document:

• who is living there;

• whether rent is being paid, if appropriate;

• who is responsible for utilities and maintenance;

• how the occupancy affects the administration of the estate; and

• whether the arrangement is consistent with the terms of the will.

Where there is disagreement about who may occupy the property, legal advice should be obtained before taking further action.

Can an Executor Sell the House Before Probate Is Complete?

Sometimes, but not always.

Although an executor's authority begins upon the deceased's death, third parties often require proof of that authority before permitting a sale to close.

If the property was owned solely by the deceased, most purchasers, lenders, and the Alberta Land Titles Office will generally require a Grant of Probate before the transfer can be completed.

In some cases, the executor may:

• prepare the property for sale;

• obtain appraisals;

• complete repairs;

• list the property for sale; and

• negotiate offers

before probate has been issued.

However, the actual transfer of title usually cannot be completed until the necessary probate requirements have been satisfied.

Because every transaction is different, executors should obtain legal advice before entering into binding agreements involving estate real estate.

Practical Examples

Example One: A House Left to a Named Beneficiary

Margaret's will leaves her home to her son.

The executor obtains probate, ensures the mortgage and property taxes remain current, maintains insurance on the home, and works with a real estate lawyer to transfer ownership into the son's name.

Because the will specifically directs that the home be transferred, the executor does not place it on the market.

Example Two: Selling the Family Home

David's will directs that his estate be divided equally among his three children.

The estate has limited cash available, and the house represents its largest asset.

The executor obtains a professional market evaluation, completes several minor repairs, lists the property for sale, and sells it for fair market value after probate has been granted.

The sale proceeds are used to pay the estate's debts and expenses, with the remaining balance divided equally among the beneficiaries.

Example Three: Vacant Property During Probate

Helen lived alone before her death.

Because no one occupies the property after her passing, the executor notifies the insurance company that the home will be vacant, arranges for regular inspections, maintains heat throughout the winter, and hires a contractor to remove snow and perform basic maintenance.

These steps help preserve the home's value while protecting the estate against avoidable damage.

Common Mistakes

Failing to Notify the Insurance Company

Many homeowner insurance policies contain vacancy provisions.

If a property becomes vacant after death, failing to notify the insurer may jeopardize coverage if a loss later occurs.

Executors should contact the insurer as soon as reasonably possible to determine whether additional coverage or endorsements are required.

Allowing the Property to Deteriorate

A vacant house requires ongoing attention.

Neglecting maintenance, security, or routine inspections can reduce the property's value and create avoidable losses for the estate.

Selling the Property Below Market Value

Executors have a duty to act in the best interests of the estate.

Obtaining professional appraisals or market evaluations before accepting an offer helps demonstrate that reasonable steps were taken to achieve fair market value.

Ignoring the Terms of the Will

If the will leaves the home to a named beneficiary, the executor should generally follow those instructions.

Selling the property simply because it seems easier or more convenient may create disputes and expose the executor to criticism.

Forgetting About Capital Gains

If the property is not the deceased's principal residence or if the estate holds the property for an extended period after death, tax consequences may arise.

Executors should work closely with an accountant to understand whether capital gains or other tax issues may affect the estate.

Costs and Considerations

Owning a home during probate often results in ongoing expenses, including:

• mortgage payments;

• property taxes;

• homeowner insurance;

• utilities;

• condominium fees;

• maintenance and repairs;

• landscaping and snow removal;

• security monitoring;

• appraisals;

• legal fees;

• real estate commissions if the property is sold; and

• accounting fees relating to tax issues.

These expenses are generally payable by the estate and should be carefully documented by the executor.

Depending on the length of the probate process, these carrying costs can become significant, making prompt and efficient estate administration important.

When Should You Speak With an Estate Lawyer?

Professional legal advice is particularly valuable if:

• the will is unclear regarding the property;

• the house is occupied by a family member or tenant;

• beneficiaries disagree about whether the property should be sold;

• the property has significant equity or complex financing;

• the estate owns multiple properties;

• the executor is uncertain whether probate is required;

• title issues arise;

• there are concerns regarding capital gains or other tax consequences; or

• the executor is concerned about personal liability.

Obtaining legal advice early can help avoid delays, protect the value of the property, and ensure the executor fulfils their legal responsibilities.

How Bridgestone Law Can Help

A house is often the most valuable asset in an estate, and decisions made during probate can have lasting financial consequences. Executors must balance their legal responsibilities with the practical realities of maintaining, transferring, or selling the property while protecting the interests of the beneficiaries.

Bridgestone Law assists executors and families throughout Calgary and Alberta with probate applications, estate administration, real estate transfers, estate property sales, and executor guidance. We can help you understand your legal authority, protect estate assets, coordinate with real estate professionals, and ensure the property is dealt with efficiently and in accordance with Alberta law.