Do You Pay Probate Fees on a House in Nova Scotia?

When a house is the main asset, the probate fee question can feel large. Whether the house counts, and at what value, depends on how it was owned and whether there is a mortgage.

This article walks through the common situations in Nova Scotia: a house in one person's name, a house with a mortgage, and a house owned jointly.

This article covers the law of Nova Scotia.

A house in the deceased's sole name

Property registered solely in the deceased's name cannot be transferred to beneficiaries without court approval, and the Probate Court gives the executor the legal authority to transfer it out of the estate. 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.

In this situation the house is part of the value used for the probate tax. Real property is counted at its fair market value, less registered mortgages and encumbrances.

Gross or net: what a mortgage does

For land, the net figure is used. A registered mortgage on a house reduces the land value counted. For personal property, the gross value is used and unsecured debts are not deducted.

Some websites say mortgages are never deducted. The regulation states the rule above, so rely on it and on the court's current guidance. The value is fixed as of the date of death.

A jointly owned house

Land held as a joint tenant passes by survivorship without a grant. On the Form 8 application, the value of assets passing under the will excludes real property held in joint tenancy, so joint property passing by survivorship does not add to the value used for the fee.

The details of how a particular home is held matter. If you are not sure whether the title is joint tenancy or another form of co-ownership, check the registered title and speak with a lawyer. Also, a bank, investment company or insurer holding an asset with a named beneficiary or joint owner may sometimes ask for probate to prove authority, though that request is usually made only for sole-name assets.

Other points that affect a house

• Real property outside Nova Scotia is excluded from the Form 8 value.
• If there are two or more personal representatives, land dispositions need all of them to concur or a Supreme Court order.
• The personal representative holds land as trustee for those entitled.
• After the grant, the full inventory in Form 29 is filed within 3 months, and the probate tax may be adjusted up, down or not at all.

If the court believes the value exceeds the inventory figure, it may inquire into the matter. Get a realistic valuation and keep it with your records.

The application and what follows

Probate applications are dealt with by a Registrar of Probate for the district, and contested matters go to a judge. The application for a grant of probate is Form 8 (or 8A). It 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. Checking that everything is in place before you file can help avoid that.

• Advertising in the Royal Gazette is required for every estate opened in Nova Scotia. It runs six months, after which the estate can move to distribution.
• Distributing earlier risks personal liability for unpaid claims.
• Within 30 days after the 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, and proof of service is due within 60 days. The registrar may extend these times.
• A surviving spouse who wants to apply to divide matrimonial assets must do so within six months after probate or administration is granted, though the court may extend that time in some cases.

How these steps apply to a particular house depends on your situation, so it is worth confirming the details with a lawyer.

What to do next

• Get a copy of the title and see whether the house is in one name or held jointly.
• Find out which mortgages or encumbrances are registered against it.
• Obtain a fair market value as of the date of death.
• Locate the original will, which is filed as an exhibit to an affidavit.
• Check the Probate Court's current fee table for the amount that applies to your value.
• Confirm with a lawyer if the title, a co-owner or a mortgage makes the picture unclear.

Frequently asked questions