Do You Need Probate When Someone Dies in New Brunswick?

When a family member dies, one of the first questions is whether the estate has to go through the Probate Court of New Brunswick. The short answer is that it depends on what the person owned and who needs to deal with it.

This article explains what probate does, when it is practically needed, and the limited situations where it can be avoided. It is general information, not advice on your own estate.

This article covers the law of New Brunswick.

What probate is and whether it is required

The Probate Court of New Brunswick is a court of record that may grant administration of the estates of deceased persons throughout the Province. It can grant Letters Probate, recall or revoke them, and supervise administration and distribution of estates.

Probate is not strictly mandatory in New Brunswick, according to the Court's own FAQ, but it is recommended, especially when the estate includes real property.

Why people usually need a grant anyway

On death, the real and personal property of the deceased vests in the personal representative (the executor or administrator), despite anything in a will. Banks, land registries and other third parties will usually ask for proof that the person dealing with the property has that authority.

For land, a deed signed by a personal representative must be accompanied by the original will, letters probate or letters of administration, or Service New Brunswick will not register it. Unless the will names an executor or trustee, it must be probated before it is used. The criteria are dated, so confirm current requirements with Service New Brunswick.

If the person had a grant issued in another jurisdiction, it may be sealed by the Probate Court once the required tax is paid, and it then has like force and effect in the Province. Letters of administration from elsewhere, where there was no will, must be resealed before they can support a personal representative's signature on a land registry form.

Exceptions and special cases

There are exceptions, and they are narrow. Compare them with the general rule above.

Section 19 of the Devolution of Estates Act, which contains the two-year rule, refers to money and securities up to $2,500 in value, personal chattels, or real property. Whether it helps in your situation depends on the facts, so check before relying on it.

Which kind of grant applies

Letters Probate are granted on a will and officially recognize the executor's authority. Letters of Administration are granted where there is no valid will, and the Court appoints an administrator, usually a family member or close friend.

Where a person dies wholly intestate, administration may be granted to the spouse, next-of-kin, or the next-of-kin's spouse as the Court considers proper. A trust company authorized to do business in the Province may also be appointed.

• Probate of a will uses Form 2A or 2B; administration with the will annexed uses Form 2C or 2D; administration without a will uses Form 2E or 2F.
• Probate is not granted until seven days have passed from the death.
• Before a grant is issued, you must file a sworn statement of the total value of the estate.
• The Court's checklist also lists an inventory, a copy of the death certificate and payment of the tax before letters issue.

What to do next

Start by listing what the person owned, especially any land, and who will need to see a grant. Applications go to the probate office for the judicial district where the deceased lived or where their property was located. The Court's FAQ says to apply through the Clerk of the Probate Court.

• Find the original will, if there is one.
• Order a death certificate through Vital Statistics; the long form is $45 in person or by mail and $40 online.
• List assets and debts, and note which are land.
• Review the Court's General Check List for Probate Applications and Index of Probate Forms.
• Speak with a lawyer before distributing anything, because a representative who distributes without a CRA clearance certificate can be held personally liable for tax owing.

Frequently asked questions