Where old system lands are owned by a person who has passed away, and the parties involved want to have a Torrens (new system) certificate of title for those lands, an application may be made by the executors or administrators of the estate. Evidence of their appointment in the form of letters of administration or a grant of probate must accompany the RPA.
Where an application is made by the executors or administrators of an estate, title will issue into the name of the executors or administrators in that capacity unless the RPA contains a direction. Once the Torrens (new system) title has issued, the executors or administrators are free to transfer the lands to a purchaser or a beneficiary without the need for any special evidence regarding the estate.
Direction by executors or administrators
Where the parties intend for title to issue into the name of a party other that the executors or administrators in their capacity as executors of administrators, a directed RPA must be filed. In addition to all other requirements of a regular RPA, the district registrar will require evidence concerning the estate.
The district registrar will not permit a disposition other than in accordance with the will (where there is a will) unless either a Quit Claim deed is attached in series or consents from all the heirs (beneficiaries) is attached in series.
The following is a list of the evidence that must be presented with a directed RPA by an estate:
a. Grant of probate or letters of administration;
b. Evidence in the form of the affidavit of debts and heirs, including:
i. Publication of notice to creditors under The Trustee Act, with no claims filed within the designated time;
ii. All debts, claims and liabilities against the deceased in the estate are paid and that there are no outstanding and unpaid income taxes or succession duties, if applicable (evidence that all income taxes of the deceased in the estate have been paid should be sufficient, without requiring a copy of the clearance certificate also to be filed);
iii. Particulars of a surviving spouse/common law partner and children; and
iv. Evidence that the executor has not been served with an application under The Dependants Relief Act (note that the limitation period under The Dependants Relief Act is six months from the date of the grant of probate or letters of administration).
c. If the land is homestead, the consent of the surviving spouse/common law partner; and
d. For deaths which took place after August 15, 1993, where there is a surviving spouse/common law partner, evidence that the personal representative served the surviving spouse/common law partner with the notice under section 31 of The Family Property Act within one month after the grant of probate or letters of administration and that no application for an accounting and equalization has been made by the surviving spouse/common law partner (the surviving spouse/common law partner has six months from the date of the grant of probate or letters of administration to file an application for an accounting and equalization under The Family Property Act).
The above rules and evidentiary requirements will also be applied if there has been a disposition of the subject the lands in the old system by the executors or administrators of an estate.