Probate Property

[Beaupre1]

My wife and I are buying (we think) a property in Wildwood (Calgary). The day we signed off on the deal (September 19th) the owner died as he was very sick. We extended the possession date so that the sellers could go through probate and file all of the necessary paperwork. We are suppose to close tomorrow (November 15th) but the probate has not been finalized. I was informed today that the paperwork was filed on October 12th because the seller`s lawyer was having problems with the paperwork.
I was not informed until late last week that probate had not been finalized.
I have been in touch with my realtor and lawyer to see how we can be protected if we take possession on the 15th. With Tenancy at Will we would take possession and pay rent to the sellers (basically just our mortgage payment) until the probate is finalized. My wife and I want some form of protection as our plan is to do a major reno starting as soon as we take possession.
I spoke with my lawyer today and he seems to think that we should just trust the sellers and that the probate will be finalized within a couple months.
The fact is we will be investing money into the property but it won`t be ours until the probate is finalized. What happens if a relative of the seller contests the sale of the property or the price we paid for it and we have installed a new kitchen, bathroom etc?
What can we do to protect ourselves? Help!
Has anyone gone through a probate?

 

[RedlineBrett]

Do you *need* to take possession right now? Could you wait until probate is finished and wait out the few months? That would be the simplest and probably the safest way.

Probate can take several months to complete because there are many things other than this property that the lawyers have to complete.

If you did your contract on the standard AREA form then clause 7.2 states that the contract is binding upon the heirs, executors and administrators so unless something crazy happens everything should be just fine - it will just take longer.

One option you should ask your lawyer about is if the seller`s lawyer administering the probate can get all the surviving members on the will agree to sign (and have notorized) a letter of intent to close on the property for the terms outlined in the original contract. This would give you additional legal protection in the eyes of a judge and would provide an interim `consent` while you wait out the probate in tenancy at will and before funds are conveyed as it would be pretty hard for the heirs to be sneaky once they`ve agreed to this.

 

[timk519]

QUOTE (Beaupre1 @ Nov 14 2007, 05:24 PM) I have been in touch with my realtor and lawyer to see how we can be protected if we take possession on the 15th. With Tenancy at Will we would take possession and pay rent to the sellers (basically just our mortgage payment) until the probate is finalized. If you`re paying rent rather than a mortgage, then you`re not getting the benefit of reducing the principle owed.

QUOTE (Beaupre1 @ Nov 14 2007, 05:24 PM) I spoke with my lawyer today and he seems to think that we should just trust the sellers and that the probate will be finalized within a couple months. Is your lawyer willing to provide any guarantees or compensate you if the sellers fail to be trustworthy? After all, it`s not his time and money that`s on the line but yours.

QUOTE (Beaupre1 @ Nov 14 2007, 05:24 PM) The fact is we will be investing money into the property but it won`t be ours until the probate is finalized. What happens if a relative of the seller contests the sale of the property or the price we paid for it and we have installed a new kitchen, bathroom etc?
What can we do to protect ourselves? Help! I`d suggest either waiting for probate to go through, or - if this is legally ironclad - getting all the heirs to sign off that they won`t contest the sale of the property to you.

Or, you could always walk away. There`ll be another deal sooner or later.

 

[Beaupre1]

Thanks for the advice. I`m going to talk to my lawyer in the morning.
We might just walk away and find a deal another day.