Do You Need Probate in Newfoundland and Labrador?

When someone close to you dies, one of the first practical questions is whether the estate has to go through the Supreme Court of Newfoundland and Labrador. The answer is not the same for every estate, and it depends on what the person owned and how it was held.

This article explains what a grant is, which assets can pass without one, and the situations where you cannot avoid applying.

This article covers the law of Newfoundland and Labrador.

What probate actually is

Probate is not legally required in Newfoundland and Labrador. In practice, though, an executor who wants to dispose of estate assets needs Letters of Probate to prove the right to do so. Where the person held land or accounts solely in their own name that an executor must sell, transfer or collect, the executor needs a grant.

A grant also protects the executor. An executor who acts without one may be liable if the will is later found invalid.

What decides whether you need a grant

The Supreme Court says the type of assets in the estate, not its value, usually decides whether an estate should be probated or administered. Fees, by contrast, depend on value. The court advises consulting a lawyer if you are unsure.

If the person left a will, the court grants Letters of Probate to the named executor. If there is no executor, an administrator must be appointed by the Supreme Court, and administration is granted to next of kin.

When there is no will, the priority of right to administration runs from the spouse to children, parents, siblings and grandparents, then creditors and the Crown, subject to the judge's discretion. Administration must go to a person resident in the province in preference to one with equal right unless a judge orders otherwise.

Assets that can pass without probate

• Life insurance with a named beneficiary: the money is not part of the insured's estate and is not subject to the insured's creditors. An irrevocable designation filed with the insurer also keeps it out of the estate.
• Employer pension plan benefits: a signed written designation lets the employer discharge its liability by paying the designated person. That Act applies to employer-established plans and does not expressly address RRSPs or RRIFs.
• A matrimonial home held jointly by spouses: joint tenancy gives the surviving spouse a right of survivorship, and beneficial ownership vests without probate or estate administration.

If the non-estate route does not cover everything the person owned, the rest may still need a grant. A lawyer can confirm how each asset was held.

When probate is unavoidable

• The person held land or accounts solely in their own name that an executor must sell, transfer or collect.
• Life insurance was made payable to the person's 'heirs', 'next of kin' or 'estate'. That is treated as a designation of the personal representative, so the money is paid to the estate and the executor will need a grant.
• The person had assets in Newfoundland and Labrador but the executor has a grant from elsewhere. The Supreme Court can reseal a foreign grant, and resealing has the same effect as a local grant.

There are some special cases. For small estates of mentally disabled persons managed by the Public Trustee, probate may be dispensed with for estates of $1,500 or less. For estates of Status Indians, the court notes that Indigenous Services Canada may need to be contacted, as the court may be unable to process the application.

What applying for a grant involves

Every application starts by posting a Notice of Application with the Registry Office (Form 56.04A). After the 5-day notice period, the applicant confirms that no caveat has been entered and no previous grant has been made, then files the petition, the inventory (Form 56.10A) and, for probate, the will.

• Cost: the charge on a grant is $60 where the estate does not exceed $1,000, plus $0.60 for each additional $100 of estate value. It is based on the inventory and valuation of property in Newfoundland and Labrador.
• Who pays: the executor or administrator pays the charge in that representative capacity only, as the estate's representative rather than personally.
• Timing: the court gives no processing timeline for a grant. The only fixed period it states is the 5-day notice period.
• Paperwork: the will must be attached as Schedule A and signed on the back by the applicant, the witness giving the Proof of Will and the person taking the affidavits, and all schedules must be initialed.

If the person died without a will, letters of administration are only issued if the administrator files a bond with two sureties, unless the court orders otherwise. The bond requirement does not apply to a trust company authorized to do business in the province or to the Public Trustee.

What to do next

• List everything the person owned and note how each item was held: sole name, joint, or with a named beneficiary.
• Find the will and any insurance or pension beneficiary forms.
• Ask each bank or institution what proof it requires.
• Keep in mind that a lawyer is not required to probate a will or administer an estate, though you may want advice if the estate is complicated.
• If you post a Notice of Application, note that it lapses 6 months after posting unless an application is made in that time or a caveat has been entered.

If you are unsure which assets need a grant, a lawyer can review the list with you before you apply.

Frequently asked questions