⚠️ Buyer/Seller Disclosure and Risk Clauses

Guidance When Probate or Administration Has Not Yet Been Granted

This resource explains what agents must do when a buyer or seller wants to proceed with an estate sale before a Grant of Probate or Administration has been obtained. It includes risk warnings, disclosure guidance, sample Tenancy-at-Will language, and important legal limitations.

🔒 Brokerage Warning

“Entering into a contract without a possession date or without confirming legal authority exposes all parties to major legal risk, even after the buyer moves in.”

• Do not rely on "Subject to Probate" clauses — they are not enforceable
  
  

• Do not assume a contract is binding if the Grant hasn't been issued
  
  

• Do not list property in the name of “The Estate of…”
  
  

🚫 Why This Matters

• Land Titles will not register a title transfer without a Grant of Probate or Administration
  
  

• Listing agreements are only valid if signed by someone with legal authority (i.e., named in the Grant)
  
  

• If minor children are involved in the estate, Public Trustee consent is required to sell
  
  

• Assets held in joint tenancy generally pass outside the estate — unless rebutted by legal evidence
  
  

📝 Sample Clause – Tenancy at Will (Schedule A)

⚠️ Use this only with legal instruction. Not available on WebForms. Not brokerage-approved for general use.

If a Grant / Order of Probate has not been obtained by the Completion Day, the Buyer will take possession on a tenancy basis, with rent paid to the Seller as determined by the amount of monthly interest the Buyer would pay on their mortgage or at the agreed rate of $____ per month. Transfer of property title to the Buyer will not occur until the Grant / Order of Probate is received by the Seller.

🗂 Schedule “A” – Example Format

This is Schedule “A” to the Real Estate Purchase Contract No. [insert #]
at [Insert municipal address], entered into between:

Estate of [Deceased Name] (The “Seller”)
—and—
[Buyer Name(s)] (The “Buyer”)

Buyer Tenancy Terms
The Buyer acknowledges that the Seller of the Property is an estate and a Grant/Order of Probate has not yet been issued.
The Seller confirms that the individuals signing this contract have applied for a Grant/Order.
If no Grant is obtained by the Completion Day:

• The Buyer will take possession as a Tenant at Will
  
  

• Rent will be paid based on mortgage interest or agreed rate of $_____ per month
  
  

• Title transfer will be delayed until the Grant is obtained
  
  

📌 Add This Term to the Purchase Contract

“This transaction involves the sale of an estate property. Possession and transfer of title are subject to the Seller obtaining a Grant of Probate or Administration. The Buyer acknowledges the risk of delay and agrees to a Tenancy-at-Will arrangement, if applicable, until such Grant is obtained.”

📞 When to Seek Legal Guidance

• There is no Will or no executor named
  
  

• The Will appears invalid, unsigned, or contested
  
  

• There is a minor child interested in the estate
  
  

• You are asked to prepare a contract before a Grant is issued
  
  

• There are joint ownership complications with adult children or surviving spouses
  
  

🎧 Listen and Learn: AREA Podcast

▶️ AREA Podcast – Power of Attorney & Probate
🎧 Jump to 15:40 to learn how to properly write the seller’s name in estate transactions.

✅ Naming the Seller

Never use:

❌ “The Estate of John Smith”

Use instead (only after the Grant is received):

✅ “Jane Smith, as Executor of the Estate of John Smith”
✅ “Jane Smith, as Administrator of the Estate of John Smith”

📌 Summary: Key Risk Guidelines

• ✅ Use Schedule A only with legal advice
  
  

• ✅ Always disclose that probate or administration is pending
  
  

• ✅ Ensure parties know that possession may be delayed indefinitely
  
  

• ✅ Buyer must have the right to terminate and receive full deposit back
  
  

• ❌ Never imply title transfer will occur before Grant is obtained