What Happens When a Titleholder Dies?

The latest statistics are in: ten out of ten people die.

Wow—what a way to lead into an article. But there you have it: death is a reality, and many of those who die hold the title to a piece of real property. So, we need to set aside our sensitivities for the sake of expanding our knowledge about what to consider when this unfortunate event occurs.

The Basics

Let’s start at the beginning—but not at birth. Although that would be a logical starting point for an article like this, I mean the bare basics. There are certain immutable truths we can rely on right away:

1. Dead people cannot sign things.
2. Dead people cannot be married.
3. Dead people cannot provide authority through power of attorney—even enduring power of attorney.

It should be apparent by now, based on common sense, that dead people cannot sell property, enter into listing contracts, or amend existing contracts, even if their name is on a land title.

The Will

After a person dies, their estate remains. That estate is governed entirely by a legal Will, which appoints an executor, executrix, or administrator (don’t ask me the difference) to manage the affairs that the deceased no longer can.

Suffice it to say that when someone dies, any authority they once had—or gave to another person—dies with them. Powers of attorney, including enduring powers, become void. The deceased's “will” or intentions are now captured in the written Will, which speaks authoritatively after their passing.

The legal Will determines what happens to the possessions accumulated in life and left behind in death, including real property. The executor is legally bound to follow those instructions.

Probate

Probate is a process. It sounds scary and a bit painful, but when a person dies, what’s left behind must be dealt with.

As mentioned in the previous section, a legal Will determines the path forward—or, if the person dies “intestate” (without a legal Will), the courts make those decisions based on legislation. For our purposes here, let’s assume the deceased had a valid Will.

During probate, the courts validate the legal Will and issue a grant of probate. This allows the executor to carry out the Will’s instructions within the bounds of applicable legislation.

To be clear: the Will is the document that grants the authority, but the probate process validates that the Will is legal and usable in certain contexts, such as under the Land Titles Act in Alberta. That Act requires a grant of probate to transfer a land title. There is no sense rushing ahead when the entire transaction could be derailed by an invalid or contested Will that stalls probate entirely.

Listing Stage

This stage starts the discussion about authority with a REALTOR®. Who has the authority to sell if the sole titleholder is deceased?

If you’ve been paying attention, you know that it's the executor named in a legal Will. You should also know that the executor must obtain a grant of probate to transfer the title to a buyer.

This means that the listing REALTOR® and their brokerage will need:

1. A copy of the death certificate (to confirm the party is deceased)
2. A copy of the legal Will (or at least the section related to the executor's authority over real property)
3. Answers about the probate process (Has it started? Is there a hearing date? Any disruptive family members surfacing?)

This information demonstrates due diligence on behalf of the brokerage and offers assurance that closing on the property is a reasonable prospect.

Offer to Purchase Stage

Now, the circle widens. Not only is the estate hoping for a smooth closing, but so are the buyer, their REALTOR®, and both brokerages.

It’s especially important at this stage to understand the probate status to prevent delays or liability. At a minimum—assuming the grant of probate hasn’t yet been issued—there must be:

• A conversation with the executor and the estate’s lawyer
• A seller’s condition added to the contract that outlines the seller's ability to obtain a grant of probate and the expected timeframe

Right of Survivorship

This “right” stems from the legal structure of joint tenancy. If a property is jointly owned (e.g., by a husband and wife), and one joint tenant dies, the surviving joint tenant automatically owns the entire property and holds full authority.

Two caveats from experience:

1. If the ownership does not explicitly state “as joint tenants,” then by default, it is “tenants in common,” which does not grant survivorship rights.
2. In some situations—such as with adult dependants or surviving joint tenants who lack capacity—this right can become legally complicated. Don’t assume it’s always straightforward.

Final Notes

Alberta now uses an electronic probate system for uncontested cases, which has significantly accelerated the process—think two weeks instead of six months! However, this only applies in uncomplicated cases.

When the electronic process works and probate is granted, the executor can register the title in their own name and avoid the complications of listing and selling on behalf of a deceased person. As the new titleholder, the executor can act just like any other seller.

Lastly, the person signing listing agreements and purchase contracts must have authority. The deceased cannot, and neither can their estate. Once the brokerage verifies that the executor has legal authority under the Will, the executor can sign the documents using:

[Executor’s Name], Executor of the Estate of Mary Smith

There’s no need to list Mary Smith herself or make contracts out to “The Estate of Mary Smith.” Doing so may create unnecessary headaches once the executor takes control of the title anyway.

I understand this isn’t the most pleasant topic. In some cases, it may be traumatic. But it’s a reality REALTORS® will face and must handle with professionalism, knowledge, and compassion. Avoiding these conversations isn’t helpful. When approached with candour and kindness, these situations can be managed in a way that protects all parties involved.

A final thought: the old idiom says, “Where there’s a will, there’s a way.”
But in the case of a legal Will, I’d suggest this instead: “Where there’s a Will… there’s family.”