Does Saskatchewan Charge Probate Fees on Real Estate and Land?

You have inherited a house or farmland, or you are the executor of someone who owned it. Before you do anything, you probably want to know whether Saskatchewan charges a probate fee on that land and how much it could be.

The short answer is that land registered solely in the deceased's name is the one asset that absolutely requires probate. How it is counted in the fee depends on how the land was owned and whether there is a mortgage.

This article covers the law of Saskatchewan.

Why real estate usually means probate

The Court of King's Bench says the only asset that absolutely requires probate is an interest in land, including mineral rights, registered solely in the deceased's name. For other assets, such as bank accounts, the institution decides whether it needs Letters.

If the estate includes real estate, Letters Probate or Letters of Administration with Will Annexed are required for any land transaction with Information Services Corporation (ISC). Even a small estate is not an exception here, because real estate always requires Letters for ISC land transactions.

How the probate fee is worked out

On a standard application, the fee is a Local Registrar fee of $200 plus a levy of $7.00 per $1,000, or portion of $1,000, of Total Part 1 Assets on the Statement of Property. Land held solely in the deceased's name is a Part I asset on that form.

For example, a Part 1 estate of $500,000, such as house equity plus accounts held solely in the deceased's name, produces a levy of $3,500, plus the $200 Local Registrar fee. The fee is paid at the court house when you apply.

If the estate is $15,000 or less and administered by the applicant, court staff help prepare the application, and the Local Registrar fee is $300 plus the same $7.00 per $1,000 levy. Under section 7 of the Act, the local registrar prepares the papers if the estate is within the prescribed amount and the applicant is a Saskatchewan resident entitled to letters who is not a creditor. That small-estate route is separate from the rule that real estate always needs Letters for ISC.

Mortgages and jointly owned land

The Court of King's Bench says that for real estate only the equity counts toward the probate fee, while the Government of Saskatchewan describes the levy as based on Total Part 1 Assets on the Statement of Property. Because these descriptions are worded differently, how a particular mortgage should be shown on the Statement of Property is worth confirming with a lawyer.

Land held in joint tenancy with survivorship passes outside probate, and assets passing outside the estate are excluded from the fee. That is a different situation from land held in the deceased's name alone.

Valuing the land and moving title at ISC

To value real property for the Statement of Property, you can use a land appraiser or agrologist report, a real estate agent market evaluation, or a municipal property assessment.

At ISC, the land must first be transferred into the personal representative's name. If the estate is not insolvent, it can then be transferred to one or more beneficiaries or a purchaser.

• Selling estate land requires written consent from all beneficiaries. If debts exceed available funds, the property may have to be sold to pay debts and beneficiary consent is not required, though it is recommended.
• Estate land can be leased for no more than one year unless all interested beneficiaries consent.
• A Certificate of No Infants Interested (Form 16-7) is required to sell real property when no beneficiary is under 18.
• If a minor is a beneficiary, ISC requires consent from the legal guardian, an acknowledgement from each minor aged 14 or older, and consent from Children's Services at the Public Guardian and Trustee.

There is a separate fee for that certificate, and the timing matters. If the estate includes real property and no named beneficiary is under 18 or a dependent adult, the Local Registrar's Certificate of No Infants Interested is requested from the Court of King's Bench for $25, and it must be requested at the time of filing the application for the grant. If it was not requested at filing, it can instead be obtained from the Office of the Public Guardian and Trustee on a notarized copy of the Letters and an affidavit that no minors or dependent adults are interested. The cost of that route can vary, so it is worth confirming the current amount with the Office of the Public Guardian and Trustee or a lawyer before you rely on it.

What to do next

• Check a recent title search to see whether the land is in the deceased's name alone or held jointly.
• Find out whether any beneficiary is under 18 or a dependent adult.
• Get a valuation and the mortgage balance so you can estimate the equity.
• Ask a lawyer how the Statement of Property should show the land and any debt against it.

Fees can change, so confirm current amounts before you apply. How these rules apply to your land depends on your situation, so it is worth confirming the details with a lawyer before you file.

Frequently asked questions