GTA Realtor · Probate Real Estate · Ontario · 2026

Selling a House in Probate in Ontario: A Guide for Estate Trustees

When someone dies owning a house in Ontario, the heirs usually cannot simply list the inherited house and sell it. Someone has to have the legal authority to sign, the court process has its own order, and two tax systems, the provincial Estate Administration Tax and federal income tax, each want a value and a filing. This probate real estate guide sets out that order from the listing side, with every rule linked to the government page it comes from. The legal work belongs to the estate lawyer; the aim here is to know what to ask and when.

Can you sell a house in Ontario before probate?

Usually not, if the house was in the deceased's name alone. The rule is that in Ontario, the estate trustee is the only person with legal authority to manage or distribute an estate^[1], and if the deceased owned real property, the estate normally must be probated^[1]. The Ministry of the Attorney General is specific about the order: when the deceased's real property must be sold, a Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone enters into an Agreement of Purchase and Sale^[1]. In practice the certificate should be in hand before an agreement of purchase and sale is signed.

The court part is usually the quick part: Certificate of Appointment applications are typically processed within 15 business days, longer if documents are missing or a judge must decide an issue^[1]. What takes longer is everything around it: gathering the will and valuations, agreeing a price among family members, and, after the sale, the tax returns and the CRA clearance certificate.

This page explains the process from a real estate agent's side. Whether a certificate is needed, who should apply and how the estate's taxes are filed are questions for an estate lawyer and an accountant.

01 · Who can sell

Who has the authority to sign

The person who signs the listing agreement and the agreement of purchase and sale is the estate trustee, often called the executor. If there is a will, it names the trustee; the court then confirms that person with a Certificate of Appointment of Estate Trustee. If there is no will, without a will, the spouse or common-law partner usually has the first right to apply, then a close adult relative; the court may appoint the most appropriate relative^[1].

When a bond is needed

The rule: a bond is required if there is no will, if the applicant is not the trustee named in the will, or if the named trustee lives outside Ontario, Canada and the Commonwealth; it must be double the estate value unless a judge orders otherwise^[1]. A bond adds time and cost to the application, which is one more reason to start the court process early.

The small estate route

Ontario has a simpler process for small estates: an estate valued at $150,000 or less (definition in effect since April 1, 2021) can use the optional simplified Small Estate Certificate process^[2]. It is fast, since small estate applications are usually processed within five business days^[2], but the signed small estate application must be sent to everyone entitled to a share of the estate 30 days before filing with the court^[2]. It also has a narrow scope: a Small Estate Certificate only authorizes dealing with the assets listed on it; newly found assets need an amended certificate (if the total stays at $150,000 or less) or a full Certificate of Appointment^[2]. A house in the GTA will rarely fit under the ceiling; why the small estate route rarely fits a GTA house explains why.

Whether the small-estate value test is measured after deducting a mortgage is not stated on the ministry's page. Ask the estate lawyer before relying on it.

Co-executors must act together, which can stall a sale when they disagree; see what happens when co-executors disagree about the house.

02 · Before you apply

When the house does not go through the estate

Not every house owned by someone who died becomes part of the estate: real property that passes to a co-owner by right of survivorship does not go through the estate and is not counted for Estate Administration Tax^[1]. For those homes, on the death of a joint tenant, the land registrar removes the deceased's name from the parcel register on receiving an application (a survivorship application) with the evidence the Director of Titles specifies^[3]; the survivorship application walks through it.

The exception married owners should know

Joint ownership is not always automatic. Under Ontario's Family Law Act, if a married person dies owning the matrimonial home as a joint tenant with someone other than their spouse, the joint tenancy is deemed severed just before death, so survivorship does not apply^[4]. This catches families where, for example, a parent who was still married put the house in joint names with an adult child.

A surviving spouse living in the home

The Family Law Act also says that a spouse with no ownership interest who was living in the matrimonial home can stay rent-free against the estate for 60 days after the death^[4]. A sale plan should allow for that window.

How the house was owned	What usually happens at death
Joint tenancy with a surviving spouse	Passes to the survivor by survivorship; not part of the estate
A married owner's matrimonial home held jointly with someone other than the spouse	Deemed severed under the Family Law Act; the deceased's share goes through the estate
Sole name, or tenancy in common	Goes to the estate trustee; a certificate is normally needed to sell

03 · Provincial tax

Estate Administration Tax and the Estate Information Return

Ontario's probate fee is the Estate Administration Tax. There is no Estate Administration Tax if the estate is valued at $50,000 or less (applications on or after January 1, 2020)^[5]; above that it is $15 for every $1,000 (or part of $1,000) of estate value above $50,000^[5]. The ministry's own worked example: $2,850 of tax on a $240,000 estate (the ministry's own worked example)^[5].

Value: Ontario real estate is valued at its appraised value at the date of death, less registered encumbrances such as a mortgage, even if it later sells for more or less^[5].
What is left out: jointly owned assets that pass automatically to the surviving owner, and real estate outside Ontario, are not counted in the estate value^[5].
What cannot be deducted: real estate commissions, funeral costs, lawyer's fees, credit card debts and lines of credit cannot be deducted from the estate value^[5].
Who pays and when: the tax is paid by the estate, not by the estate trustee personally^[5]; it is paid as a deposit when the estate certificate application is filed; it becomes the tax once the certificate is issued, and no tax is owed if no certificate is applied for or issued^[5].

The return after the certificate

Under the Estate Administration Tax Act, an Estate Information Return must be filed with the Ministry of Finance within 180 calendar days after the estate certificate is issued, even if the estate value is $0^[5]. If something turns up later, an amended return is due within 60 calendar days of learning the original was incomplete or inaccurate (for errors found within four years of the certificate) or of reporting newly found assets to the court^[5]. The penalties are real: failing to file, or filing a false return, can bring a fine of at least $1,000 and up to twice the tax payable, up to two years in prison, or both^[5], and records supporting the return must be kept for four years^[5]. A longer explainer: Estate Administration Tax on a house.

04 · Federal tax

The final return, the estate return and the clearance certificate

Income tax runs on a separate track from the provincial tax. The CRA's rule is that at death, a person is considered to have sold all their capital property, including real estate, at fair market value just before death; any gain goes on the final return unless the property goes to a spouse or common-law partner or another exception applies^[6]. For a spouse, property left to a Canadian-resident surviving spouse or common-law partner can roll over tax-deferred if it vests in them within 36 months of the death^[6].

If the house was the principal residence

The CRA is clear that to exempt the gain on the deceased's principal residence, the legal representative must still designate it on Schedule 3 and Form T1255 of the final return, even if the whole gain is exempt^[6]. The exemption has an end date: the deceased's principal residence designation only covers the period up to the date of death^[6]. So if the estate sells the home after the death, the gain (the sale price minus the date-of-death value reported on the final return and minus the selling costs) is reported on the estate's T3 return^[6]. A house that sits unsold while prices rise can therefore create tax for the estate even though the parent paid none. The CRA notes exceptions: a beneficiary who meets the conditions may be able to designate the home as their own principal residence, and some trusts have their own rules, so ask the accountant before assuming tax is owed.

Deadlines and the clearance certificate

Final return: the final return is due April 30 of the following year for deaths from January 1 to October 31, or six months after the death for deaths in November or December (a later date, June 15, can apply if the deceased or their spouse ran a business)^[7].
Clearance certificate: a CRA clearance certificate confirms the deceased's and the estate's taxes are paid; without one, a representative who distributes assets while tax is owing is personally liable up to the value distributed^[8].
When to ask for it: request it on Form TX19 only after the returns are filed and assessed and all amounts owing are paid or secured — not together with the returns^[8].
How long it takes: CRA acknowledges the request within 45 days, and the assessment can take up to 120 days if all documents were provided (longer if audited)^[8].

That is why estates often hold back part of the sale proceeds until the certificate arrives; see the clearance certificate every estate trustee should get.

If the seller is a non-resident

When the seller is a non-resident, section 116 applies: a non-resident vendor of Canadian real property must notify CRA (Form T2062) within 10 days after the disposition, with payment or acceptable security^[9], and without a certificate of compliance, the buyer may become liable for the vendor's tax and is entitled to withhold 25% (50% on certain property) of the proceeds, less any certificate limit^[9]. Whether an estate itself counts as non-resident depends on where its trustees manage it, which is a question for the accountant. See selling as a non-resident: the section 116 certificate.

05 · While it waits

Looking after an empty house

Between the death and the closing, the house still needs heat, insurance and someone checking on it. Insurance comes first: most home insurers treat a home as vacant after 30 consecutive days, and an inherited home can count as vacant; options include regular check-ins, a vacancy endorsement or a separate vacant-home policy^[10]. Call the insurer early and read the vacancy wording in the policy.

Vacant home tax

Toronto's Vacant Home Tax is 3% of the property's assessed value (from 2024); 2026 occupancy must be declared by April 30, 2027, and a home with no declaration is deemed vacant^[11]. There is relief for estates: Toronto's Vacant Home Tax exempts a vacant home whose registered owner died, for up to three consecutive tax years (the year of death or the two following years), with a death certificate as proof — but a declaration must still be filed^[11]. In the year of the sale, the year a property sells qualifies for the transfer-of-ownership exemption; if no declaration was filed, the new owner is responsible for the previous owner's charges, so the seller should give the buyer a copy of the declaration^[11].

Outside Toronto, check with the municipality: since March 27, 2024 all single- and upper-tier Ontario municipalities (which includes York Region) have authority to impose a vacant home tax; the provincial framework recommends exempting homes whose registered owner has died^[12].

Keep the heat on through winter and arrange regular visits.
Forward the mail and keep the driveway and lawn looked after.
Agree early, in writing, who pays the property tax, insurance and utilities until the sale closes, how those costs are paid back, and whether the house is rented in the meantime. Probate to closing can take months, and unrecorded payments are a common family dispute.
Leave the contents decision to the trustee and the family; a staged or emptied house can be agreed once the price strategy is clear.

06 · The sale

Listing and selling a house in probate

Once the trustee has authority, the sale itself follows the ordinary process with a few differences. The listing agreement is the trustee's, and like any listing a seller representation (listing) agreement must state its effective and expiry dates, with the expiry date shown prominently on page one and initialled by the client, plus how commission is calculated and paid^[13]. Who can sign a listing agreement covers the signing rules.

If one beneficiary wants to keep the house rather than sell it, raise that with the estate lawyer before the listing is signed: whether the house can be transferred to them instead depends on the will.
Price from evidence everyone can see. Siblings, co-executors and beneficiaries should receive the same comparable sales at the same time.
Sellers' disclosures are limited to what the trustee actually knows; a home inspection before listing can answer buyers' questions early.
Plan the closing date around the estate: the certificate, any spousal possession period, and the time the lawyer needs to discharge the mortgage.

Claims that can hold up distribution

Under the Succession Law Reform Act, a dependant's support claim must generally be brought within six months of the grant; once notice of a claim is served, the trustee may not distribute the estate without consent or a court order^[14]; see how a dependant support claim affects an estate sale. Timing also matters in the other direction: real property not dealt with by the personal representative within three years of the death vests in the beneficiaries unless a caution is registered (subject to the Land Titles Act)^[15]. How that applies to a particular title is a question for the estate lawyer.

07 · No will

If there is no will

Without a will, Ontario's Succession Law Reform Act decides who inherits. The surviving married spouse receives a preferential share first: $350,000 spousal preferential share for deaths on or after March 1, 2021 ($200,000 for earlier deaths)^[16]. Then after the preferential share, the spouse takes one-half of the rest with one child, or one-third with two or more children; with no children or other issue, the spouse takes everything^[14].

Common-law partners: a common-law spouse does not inherit under the Succession Law Reform Act when there is no will^[17], although they may still apply to be estate trustee.
Married spouses can choose the Family Law Act route instead: a married surviving spouse who wants an equalization payment instead must file the Election of Surviving Spouse no later than six months after the death^[17].

More detail: no will in Ontario: who inherits the house and who can sell it.

Frequently asked questions

Can an executor list a house before probate in Ontario?

The Ministry of the Attorney General's guidance is that when the deceased's real property must be sold, a Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone enters into an Agreement of Purchase and Sale^[1]. A listing can be prepared while the application is in, but the estate trustee should have the certificate before signing an agreement of purchase and sale. The estate lawyer confirms when the house can be sold.

How long does probate take in Ontario?

For the court step, Certificate of Appointment applications are typically processed within 15 business days, longer if documents are missing or a judge must decide an issue^[1]; for small estates, small estate applications are usually processed within five business days^[2]. The longer waits are usually before the application (gathering documents and valuations) and after the sale, when CRA acknowledges the request within 45 days, and the assessment can take up to 120 days if all documents were provided (longer if audited)^[8].

How much is probate tax on a house in Ontario?

Estate Administration Tax is $15 for every $1,000 (or part of $1,000) of estate value above $50,000^[5], with no Estate Administration Tax if the estate is valued at $50,000 or less (applications on or after January 1, 2020)^[5]. The house counts at its value on the date of death less the mortgage, and real estate commission cannot be deducted. The ministry's example: $2,850 of tax on a $240,000 estate (the ministry's own worked example)^[5].

Does a jointly owned house go through probate?

Usually not: real property that passes to a co-owner by right of survivorship does not go through the estate and is not counted for Estate Administration Tax^[1]. The exception is a married owner whose matrimonial home was held jointly with someone other than their spouse; under the Family Law Act if a married person dies owning the matrimonial home as a joint tenant with someone other than their spouse, the joint tenancy is deemed severed just before death, so survivorship does not apply^[4].

Who pays tax when an estate sells a house?

Two taxes apply separately. Estate Administration Tax is paid by the estate when the certificate is applied for. Income tax is filed for the deceased on the final return, and if the estate sells the home after the death, the gain (the sale price minus the date-of-death value reported on the final return and minus the selling costs) is reported on the estate's T3 return^[6]. The trustee should wait for the CRA clearance certificate before distributing everything.

When the estate is ready to sell

Once the trustee has authority, the next questions are price and timing. Start from comparable sales and the selling process.

Free home evaluation →A written price opinion from recent comparable sales Selling process in Ontario →From listing agreement to closing day, step by step Selling a parent's home →A guide for adult children, before and after a death

Sources

Ontario Ministry of the Attorney General — Apply for probate of an estate · https://www.ontario.ca/page/apply-probate-estate · verified 2026-11-07
Ontario Ministry of the Attorney General — Probate of a small estate · https://www.ontario.ca/page/probate-small-estate · verified 2026-11-07
Ontario e-Laws — Land Titles Act, s. 123 · https://www.ontario.ca/laws/statute/90l05 · verified 2026-11-07
Ontario e-Laws — Family Law Act, s. 26(1) · https://www.ontario.ca/laws/statute/90f03 · verified 2026-11-07
Ontario Ministry of Finance — Estate Administration Tax · https://www.ontario.ca/page/estate-administration-tax · verified 2026-11-07
Canada Revenue Agency — Taxable capital gains on property, investments, and belongings (Prepare tax returns for someone who died) · https://www.canada.ca/en/revenue-agency/services/tax/individuals/life-events/doing-taxes-someone-died/prepare-returns/report-income/capital-gains.html · verified 2026-11-07
Canada Revenue Agency — Filing and payment due dates (Prepare tax returns for someone who died) · https://www.canada.ca/en/revenue-agency/services/tax/individuals/life-events/doing-taxes-someone-died/prepare-returns/filing-deadlines.html · verified 2026-11-07
Canada Revenue Agency — Apply for a clearance certificate · https://www.canada.ca/en/revenue-agency/services/tax/individuals/life-events/doing-taxes-someone-died/clearance-certificate.html · verified 2026-11-07
Canada Revenue Agency — Disposing of or acquiring certain Canadian property · https://www.canada.ca/en/revenue-agency/services/tax/international-non-residents/information-been-moved/disposing-acquiring-certain-canadian-property.html · verified 2026-11-07
General Insurance OmbudService (GIO) — Vacant property risk and what that could mean under your insurance policy · https://giocanada.org/vacant-property-risk-and-your-insurance-policy/ · verified 2026-11-07
City of Toronto — Vacant Home Tax · https://www.toronto.ca/services-payments/property-taxes-utilities/vacant-home-tax/ · verified 2026-11-07
Ontario Ministry of Finance — Municipal Vacant Home Tax · https://www.ontario.ca/page/municipal-vacant-home-tax · verified 2026-11-07
RECO — Bulletin 2.3 Representation agreements · https://www.reco.on.ca/agents-and-brokerages/reco-bulletins/reco-bulletin-2-3-representation-agreements/ · verified 2026-11-07
Ontario e-Laws — Succession Law Reform Act, ss. 61 and 67 · https://www.ontario.ca/laws/statute/90s26 · verified 2026-11-07
Ontario e-Laws — Estates Administration Act, s. 9(1) · https://www.ontario.ca/laws/statute/90e22 · verified 2026-11-07
Ontario e-Laws — O. Reg. 54/95 (General) under the Succession Law Reform Act · https://www.ontario.ca/laws/regulation/950054 · verified 2026-11-07
Ontario Ministry of the Attorney General — Administering estates · https://www.ontario.ca/page/administering-estates · verified 2026-11-07

Estate, succession and tax rules are set by the Province of Ontario, the courts and the CRA, and their own pages are the final word; processing times are the published norms, not guarantees. Every estate is different: confirm who can sign, when the house can be sold and how the tax is filed with an estate lawyer and an accountant. General information only, not legal or tax advice.