Do You Always Need Probate in Nova Scotia? When It Can Be Skipped

Probate takes time and money, so it is natural to ask whether you can avoid it. In Nova Scotia the answer depends on how each asset was held.

This article looks at assets that may pass without probate, those that usually do not, and how to find out what a bank or land registry will accept. A lawyer can confirm how this applies to your estate.

This article covers the law of Nova Scotia.

The starting point: sole-name property

Property registered solely in the deceased's name cannot be transferred to beneficiaries without court approval. The Probate Court gives the executor the authority to transfer it.

A grant is generally required to sell or transfer land in the deceased's name, and it is filed with the Land Registration Office when the land is transferred.

Applications for a grant are dealt with by a Registrar of Probate for the district, and contested matters go to a judge. Form 8 (or 8A) is the application for a grant of probate. Since April 1, 2024, a filer must include the original will as an exhibit to an affidavit when applying.

Assets that may pass without probate

• Land held as a joint tenant. It passes by survivorship without a grant.
• Assets with a named beneficiary or a joint owner. An executor may need probate only if the asset holder (such as a bank, investment company or insurer) asks for it to prove authority.

That request is usually made only for sole-name assets. Separately, on the Form 8 application, the value of assets passing under the will leaves out real property held in joint tenancy, real property outside Nova Scotia, and insurance.

When a bank or registry will insist

The decision often rests with the institution holding the asset. If an account or investment is in the deceased's name alone, expect to be asked for a grant. If land is in the sole name, the grant is filed when it is transferred.

If a grant is needed, an application for probate must be accompanied by the original will with proof of execution, proof of death, any required renunciations or security, and payment of the probate tax. If an application or required material is incomplete, the registrar may issue a notice of rejection in Form 17 by ordinary mail.

• Advertising in the Royal Gazette is a statutory requirement for every estate opened in Nova Scotia, and the advertisement runs six months, after which the estate can move to distribution.
• Within 30 days after a grant is issued, the personal representative must serve notice of the grant on each person who is or may be entitled to share in the estate.
• After the grant, the personal representative files a full inventory in Form 29 within 3 months.
• Distributing before the claims period ends risks personal liability for unpaid claims.

Small estates and other questions

How this applies to a small estate depends on your situation, so it is worth confirming with a lawyer. Whether a small estate can avoid probate depends on what the assets are and what each holder will accept. Ask each institution what it requires in writing and speak with a lawyer if unsure. Where a grant is taken out, the estate is valued as of the date of death.

Some family claims have time limits that run from a grant, which is one reason the choice about probate matters. Where probate or administration is granted, a surviving spouse's application to divide matrimonial assets must be made within six months after the grant. The court may extend that time if the survivor did not know of the grant or lacked adequate opportunity to apply, but a late application reaches only undistributed assets. A family maintenance application cannot be brought after six months from the grant, subject to an extension. When no grant is taken out, how these timelines apply is worth confirming with a lawyer.

What to do next

• List every asset and note how it is held: sole name, joint, or with a named beneficiary.
• Find the death certificate and any beneficiary designations.
• Ask each bank, insurer or investment company what it needs.
• Check the land title for how the property is held.
• Get legal advice before skipping probate if there is any dispute or sole-name land.

Frequently asked questions