Realtors are often brought into estate sales with the assumption that once a grant of probate or administration is issued to an executor or administrator, they have authority to sell any real property in the estate in the course of estate administration.

But this can be a costly mistake if the real property is specifically gifted in the will. This month’s newsletter features important info from our wills & estates lawyer Naz Khodarahmi about navigating estate sales.

• Specific Gift vs. Residue

• Why It Matters

• What Can Go Wrong in Practice

• What to Watch For

Specific Gift vs. Residue

Gifting specific property in a will means leaving a particular, identified asset to a named beneficiary or beneficiaries.

Gifting the residue of an estate means leaving whatever remains of the estate after all debts, taxes, expenses, and specific gifts have been paid. The residuary beneficiary or beneficiaries receive the balance of the estate, which can increase or decrease depending on what assets are left and what liabilities must be settled.

Why It Matters

Under the Wills, Estates and Succession Act, an executor or administrator of an estate cannot distribute the estate until 210 days after the grant of probate or administration is issued unless they have the written consent of all beneficiaries to do so. However, the sale of estate property isn't a distribution. It's a conversion of property into cash, and therefore does not require the written consent of the beneficiaries.

So if a homeowner passes without a will, or leaves a will saying: "I gift the residue of my estate to my children A, B, and C", then the personal representative has the authority to proceed with a sale without asking for the specific written consent of each of A, B, and C.

However, if a homeowner passes and leaves a will saying: "I gift my house at 123 Main Street to my children A, B, and C":

• The executor does not have unfettered authority to sell the property

• The property is not simply converted into cash for distribution

• A, B, and C each receive a beneficial interest in the land itself, not just its value

This means the executor must obtain the written consent of A, B, and C to sell before listing or selling the property, unless the will clearly authorizes sale despite the specific gift.

What Can Go Wrong in Practice

We see this issue arise when:

• A listing is signed without confirming the nature of the gift in the will

• A buyer later questions the executor’s authority

• A beneficiary objects mid-transaction, delaying or collapsing the sale

• The executor is exposed to personal liability for acting outside their authority

What to Watch For

Before accepting an estate listing in BC, it’s worth confirming:

• Does the will specifically gift the real property, or does it fall into the residue?

• Does the will expressly authorize the executor to sell despite a specific gift?

• If the will does specifically gift the real property, have all beneficiaries with a beneficial interest in the property consented in writing to sell?

These questions can save delay and protect everyone involved in the transaction.

Questions? Contact our wills & estates lawyer Naz Khodarahmi today!

🤔 Did You Know?

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A reminder that Arora Zbar LLP has 6 lawyers offering services in real estate transactions, construction disputes, corporate law, commercial litigation, tenancy/strata disputes, and estate planning & administration.

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Contrary to what people think, a lawyer is not more expensive than a notary. Remember that all lawyers are notaries, but notaries are not lawyers. In my experience, most notaries refer clients to a lawyer as soon as there’s a problem with a deal. Why not start with a lawyer?

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