“As-is” shows up in a lot of listings, and in most cases, it just means the seller does not plan to fix anything, so factor that into your offer. However, when it comes to a probate sale, as-is means something entirely different…
Ontario’s Default Rule: Caveat Emptor “AKA: Buyer Beware”
Under Ontario Law, it is the buyer’s responsibility to inspect the home, and find that the home is satisfactory in their opinion.
If a seller does use the term “As-Is”, it is usually industry jargon meaning they are not willing to make any repairs to the home. Using the term As-Is, does not mean the seller can avoid disclosing hidden defects in a home. (Although, never assume every agent and seller fully understands their legal obligations in a sale, so it’s important to have that discussion with the listing agent and seller.)
However, when it comes to probate sales, As-Is means something more serious…
The owner of the home has passed on, and the person selling the home has not lived in the home. Because they are basically a third-party in the transaction, they cannot disclose hidden defects that a usual homeowner might have noticed if they regularly lived in the property. As such, an As-Is home being sold under probate, is truly the only as-is real estate we have in Ontario.
Why a Trustee’s Lack of Knowledge Is the Real Risk
In a typical resale, the seller usually lived in the home, or managed the day-to-day rental of the property. They know if the basement flooded three years ago, they know it there’s asbestos insulation, and they know if the basement is not built to code. Whether or not they disclose it, that’s a legal issue for later.
In a probate sale, the person signing as “seller” is often an executor or trustee who never lived in the home, and in some cases has only seen it during a brief walkthrough, if at all. They may be a family member who lived hours away, or a professional trustee with no personal history in the property whatsoever. When it comes to a latent defect like a hidden foundation issue, an old oil tank buried in the yard, or water damage hidden behind a wall they simply can’t be expected to know.
If the seller has no actual knowledge of a defect, the duty to discuss that defect lapses. The courts have consistently tied seller liability to actual knowledge, rather than what the seller “should have known”.
How This Is Different From a Regular As-Is Sale
The difference isn’t the as-is clause itself, since the wording is often nearly identical. The difference is the understanding.
In a regular resale, even an as-is one, there’s still a real person who lived in the house and likely knows things about it. If it later turns out they knew about a dangerous latent defect and stayed quiet, or actively covered something up, a buyer may have legal recourse. It’s not guaranteed, and it’s not simple, but the door isn’t fully closed.
In a probate sale, that door is often closed before you even get there. Many trustees have a genuine lack of firsthand knowledge, and an as-is probate sale can end up being closer to true buyer-beware than almost any other kind of residential transaction in Ontario.
What Buyers Should Actually Do About It
None of this means avoid probate sales, it just means treat the inspection period as the only real protection you’re going to get, because it likely is.
However, nothing is stopping you as the buyer from requesting additional inspections. A buyer can request a general home inspection, but they can also make an offer contingent on a plumbing inspection, an electrical inspection, or even a structural engineer review.
In 2023, we sold a very cute bungalow to a young, first-time buyer couple. The home was approximately 42 years old, and the seller had lived in the home for 40 years. Our clients hired an excellent home inspector who found no major issues. However, during a renovation, the buyers uncovered a faux wall that was hiding significant foundation damage. The cost to repair the basement wall exceeded $50,000, so they sued the seller and recovered their damages.
The seller claimed they didn’t know about the faux wall, but the judge found that it was unreasonable to think someone who had lived in a home for 40 years would not have noticed the faux wall.
If this home was sold as an estate sale, the trustee might have actually not known about a faux wall, and in this case, the buyers might not have had a case to pursue the seller for damages.
Frequently Asked Questions
If I find a serious defect after closing on a probate home, do I have any recourse?
It depends entirely on what the seller actually knew, and proving that after the fact. This is exactly why the inspection period matters so much more before closing than any hope of recourse after.
Does “as-is” mean the same thing in a probate sale as a regular sale?
The clause itself is usually similar, but the practical effect is often stronger in a probate sale, since there’s typically no one behind the sale with firsthand knowledge of the property’s history to potentially hold accountable.
Should I be more cautious with a trustee-managed sale than a family-managed one?
Generally, yes. A family member acting as executor may have visited the home regularly or spoken with the deceased about its condition. A court-appointed trustee typically has no such history with the property at all.
Is a probate home more likely to have hidden issues than a regular resale?
Not necessarily more issues, but a meaningfully higher chance that any existing issues were never identified or disclosed by anyone, simply because no one with firsthand knowledge was involved in the sale.
Looking at a Probate Listing?
This is exactly the kind of purchase where your realtor’s job is to protect the parts of the deal you can’t see — pushing hard on the inspection, knowing which specialists to bring in, and understanding who’s actually behind the sale. If you’re considering an as-is probate property, we’re glad to walk through it with you before you waive a single condition.