DEVOLUTION OF REAL PROPERTY ACT

Chapter D‑12

Table of Contents

                1       Definitions

                2       Devolution of real property

                3       Personal representative as trustee

                4       Rules of law to apply

                5       Administration of assets

                6       Administration of real property

                7       Personal representatives to be deemed heirs

                8       Conveyance of real property

                9       Powers of sale

              10       Sale for distribution only

              11       Where a minor is interested

              12       Option to purchase real property

              13       Distribution or division

              14       Other powers of personal representative

              15       Real property sold or distributed

              16       Concurrence of personal representatives

              17       Rights conferred

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Definitions

1   In this Act,

                                 (a)    “Court” means the Court of Queen’s Bench;

                                 (b)    repealed 2008 cA‑4.2 s128;

                                 (c)    “personal representative” means the executor, original or by representation, or administrator of a deceased person;

                                 (d)    “represented adult” means

                                           (i)    a represented adult as defined in the Adult Guardianship and Trusteeship Act, or

                                          (ii)    a person in respect of whom a certificate of incapacity is in effect under the Public Trustee Act.

RSA 2000 cD‑12 s1;RSA 2000 c16(Supp) s60;
2008 cA‑4.2 s128

Devolution of real property

2(1)  Real property in which a deceased person was entitled to an interest not ceasing on the deceased’s death

                                 (a)    on the deceased’s death, notwithstanding any testamentary disposition, devolves on and becomes vested in the deceased’s personal representative as if it were personal property vesting in the personal representative, and

                                 (b)    shall be dealt with and distributed by the personal representative as personal estate.

(2)  A testator is deemed to have been entitled at the testator’s death to any interest in real property passing under a gift contained in the testator’s will and that operates as an appointment under a general power to appoint by will.

(3)  The personal representative is the representative of the deceased person in regard to the deceased’s real property in which the deceased was entitled to an interest not ceasing on the deceased’s death as well as in regard to the deceased’s personal property.

(4)  Probate and letters of administration may be granted with respect to real property only, although there is no personal property.

RSA 1980 cD‑34 s2

Personal representative as trustee

3   Subject to the powers, rights, duties and liabilities mentioned in this Act, the personal representative of a deceased person holds the real property as trustee for the persons by law beneficially entitled to it, and those persons have the same right to require a transfer of real property as persons beneficially entitled to personal property have to require a transfer of the personal property.

RSA 1980 cD‑34 s3

Rules of law to apply

4   Subject to this Act,

                                 (a)    all enactments and rules of law and the jurisdiction of any court with respect to

                                           (i)    the appointment of administrators, or to probate or letters of administration, or dealings before probate in the case of personal property, and

                                          (ii)    costs and other matters in the administration of personal property,

                                          in force before July 1, 1928, and

                                 (b)    all powers, duties, rights, equities, obligations and liabilities of a personal representative in force on July 1, 1928, with respect to personal property,

apply, extend and attach to the personal representative and have effect with respect to real property vested in the personal representative.

RSA 1980 cD‑34 s4

Administration of assets

5   Without prejudice to the rights and powers of a personal representative, the appointment of a representative in regard to real property does not, except as provided in this Act, affect

                                 (a)    a rule as to marshalling or as to administration of assets,

                                 (b)    the beneficial interest in real property under a testamentary disposition,

                                 (c)    a mode of dealing with a beneficial interest in real property or the proceeds of its sale, or

                                 (d)    the right of a person claiming to be interested in the real property to take proceedings for the protection or recovery of it against a person other than the personal representative.

RSA 1980 cD‑34 s5

Administration of real property

6(1)  In the administration of the assets of a deceased person, the deceased’s real property shall be administered in the same manner, is subject to the same liabilities for debts, costs and expenses, and has the same incidents, as if it were personal property.

(2)  Nothing in this Act alters or affects the order in which real and personal assets respectively are applicable, as between different beneficiaries, in or toward the payment of funeral and testamentary expenses, debts or legacies, or the liability of real property to be charged with payment of legacies.

RSA 1980 cD‑34 s6

Personal representatives to be deemed heirs

7(1)  When a part of the real property of a deceased person vests in the deceased’s personal representative under this Act, the personal representative,

                                 (a)    in the interpretation of any Act of the Legislature, or

                                 (b)    in the construction of an instrument to which the deceased was a party or under which the deceased was interested,

is, while the estate remains in the personal representative, deemed in law to be the heir of the deceased, as respects that part, unless a contrary intention appears.

(2)  Nothing in this section affects the beneficial right to any property or the construction of words of limitation of an estate in or by a deed, will or other instrument.

RSA 1980 cD‑34 s7

Conveyance of real property

8(1)  At any time after the date of grant of probate or letters of administration, the personal representative may convey the real property to a person entitled to it, and may make the conveyance either subject to a charge for the payment of money that the personal representative is liable to pay, or without that charge.

(2)  When a conveyance is made subject to a charge under subsection (1) for all money, if any, that the personal representative is liable to pay, all liabilities of the personal representative in respect of the real property cease, except as to any acts done or contracts entered into by the personal representative before the conveyance.

(3)  At any time after the expiration of one year from the date of grant of probate or of letters of administration, if the personal representative has failed when requested by the person entitled to any real property, to convey the real property to that person, the Court if it thinks fit, on the application of that person and after notice to the personal representative, may order that the conveyance be made, and may in default make an order vesting the real property in that person as fully and completely as might have been done by a conveyance of it from the personal representative.

(4)  If, after the expiration of one year, the personal representative has failed, with respect to the real property or a portion of it, either to convey it to a person entitled to it or to sell and dispose of it, the Court on the application of a person beneficially interested,

                                 (a)    may order that the real property or portion be sold on any terms and within any period that appears reasonable, and

                                 (b)    on the failure of the personal representative to comply with the order may direct a sale of the real property or portion on any terms of cash or credit, or partly one and partly the other, that the Court considers advisable.

RSA 1980 cD‑34 s8

Powers of sale

9   The personal representative may sell the real property for the purpose not only of paying debts, but also of distributing the estate among the persons beneficially entitled to it, whether there are or are not debts, and it is not necessary for the persons beneficially entitled to concur in any sale except when it is made for the purpose of distribution only.

RSA 1980 cD‑34 s9

Sale for distribution only

10(1)  Subject to this Act, no sale of real property for the purpose of distribution only is valid as respects any person beneficially interested, unless that person, or that person’s trustee pursuant to the Adult Guardianship and Trusteeship Act or under a certificate of incapacity that is in effect under the Public Trustee Act, concurs in the sale.

(2)  When, in the sale of real property,

                                 (a)    a person of unsound mind for whom

                                           (i)    a trustee does not have authority under the Adult Guardianship and Trusteeship Act to consent to a sale of real property, and

                                          (ii)    a certificate of incapacity is not in effect under the Public Trustee Act

                                          is beneficially interested,

                                 (b)    adult beneficiaries do not concur in the sale,

                                 (c)    under a will there are contingent interests or interests not yet vested, or

                                 (d)    the persons who might be beneficiaries are not yet ascertained,

the Court, on proof satisfactory to it that the sale is in the interest and to the advantage of the estate of the deceased person and the persons beneficially interested in it, may approve the sale, and any sale so approved is valid as respects the contingent interests and interests not yet vested, and is binding on the person of unsound mind described in clause (a), non‑concurring persons and beneficiaries not yet ascertained.

(3)  If an adult beneficiary or that person’s trustee under the Adult Guardianship and Trusteeship Act accepts a share of the purchase money, knowing it to be such, the beneficiary or trustee is deemed to have concurred in the sale.

RSA 2000 cD‑12 s10;2008 cA‑4.2 s128

Where a minor is interested

11(1)  No sale, where a minor is interested, is valid without the written consent or approval of the Public Trustee or, in the absence of that consent or approval, without an order of the Court.

(2)  A sale of real property made with the consent or approval of the Public Trustee or the Court under this section is binding on the minor interested in it.

RSA 1980 cD‑34 s11

Option to purchase real property

12(1)  Subject to this section, the personal representative may grant an option to purchase real property in any case where the personal representative is empowered to sell that real property, if the period within which the option may be exercised is not longer than one year from the date on which the instrument granting the option is executed.

(2)  A grant by the personal representative of an option to purchase real property is invalid unless the personal representative obtains

                                 (a)    any concurrence of any person under section 9 or 10(1),

                                 (b)    any order of the Court under section 10(2) or 11, or

                                 (c)    any consent or approval of the Public Trustee under section 11,

that the personal representative would be required to obtain if the granting of the option to purchase the real property were instead the sale of that real property.

(3)  A concurrence, order, consent or approval to the granting of an option to purchase real property referred to in subsection (2) when made or given extends also to any sale of that property made on the exercise of the option and in accordance with the instrument granting the option.

(4)  When a grant by a personal representative of an option to purchase real property is approved by an order of the Court, the grant is valid as respects the contingent interests and interests not yet vested, and is binding on the represented adult, non‑concurring persons and beneficiaries not yet ascertained and minors.

(5)  If an adult beneficiary accepts a share of the consideration given for the grant of the option to purchase, knowing it to be such,  the beneficiary is deemed to have concurred in the grant of the option.

RSA 2000 cD‑12 s12;2008 cA‑4.2 s128

Distribution or division

13   The personal representative may,

                                 (a)    with the concurrence of the adult persons beneficially interested, and

                                 (b)    if any minor or represented adult is beneficially interested, with the approval of

                                           (i)    the Public Trustee on behalf of the minor, or

                                          (ii)    the trustee of the represented adult on behalf of the represented adult,

divide or partition and convey the real property of the deceased person, or any part of it, to or among the persons beneficially interested.

RSA 2000 cD‑12 s13;2008 cA‑4.2 s128

Other powers of personal representative

14(1)  The personal representative may, from time to time, subject to the provisions of any will affecting the property, do any one or more of the following:

                                 (a)    lease the real property or a part of it for a term of not more than one year;

                                 (b)    lease the real property or a part of it, with the approval of the Court, for a longer term;

                                 (c)    raise money by way of mortgage of the real property or a part of it, for the payment of debts or for payment of taxes on the real property to be mortgaged and, with the approval of the Court, for the payment of other taxes, the erection, repair, improvement or completion of buildings, or the improvement of land, or for any other purpose beneficial to the estate.

(2)  When minors or represented adults are interested, the approvals or order required by sections 10 and 11 in the case of a sale are required in the case of a mortgage, under subsection (1)(c), for payment of debts or payment of taxes on the real property to be mortgaged.

RSA 2000 cD‑12 s14;2008 cA‑4.2 s128

Real property sold or distributed

15(1)  A person purchasing real property in good faith and for value from the personal representative, or from a person beneficially entitled to it to whom it has been conveyed by the personal representative, holds it freed and discharged from any debts or liabilities of the deceased owner except any that are specifically charged on it otherwise than by the deceased owner’s will and, when the purchase is from the personal representative, freed and discharged from all claims of the persons beneficially interested.

(2)  So long as real property that has been conveyed by the personal representative to a person beneficially entitled to it remains vested in that person, or in a person claiming under that person not being a purchaser in good faith and for value, it continues to be as liable to answer the debts of the deceased owner as it would have been if it had remained vested in the personal representative, and in the event of a sale or mortgage of it in good faith and for value by the person beneficially entitled, that person is personally liable for the debts to the extent to which the real property was liable when vested in the personal representative, but not beyond the value of the real property.

RSA 1980 cD‑34 s15

Concurrence of personal representatives

16   When there are 2 or more personal representatives, a conveyance, mortgage, lease or other disposition of real property devolving under this Act shall not be made without the concurrence  in it of all those representatives or an order of the Court, except that when probate is granted to one or some of 2 or more persons named as executors, whether or not power is reserved to the other or others to prove, any conveyance, mortgage, lease or other disposition of the real property may be made by the proving executor or executors, without an order of the Court, and is as effectual as if all the persons named as executors had concurred in it.

RSA 1980 cD‑34 s16

Rights conferred

17   The rights and immunities conferred by this Act on personal representatives are in addition to, and not in derogation of, the powers conferred by any other Act or by the will.

RSA 1980 cD‑34 s17