Do You Need Probate to Sell a Deceased Parent's House in New Brunswick?

A parent has died, the house is sitting empty, and someone wants to sell it or put it in a sibling's name. The first question is usually whether you have to go through probate before a buyer or the Land Registry will deal with you.

In New Brunswick the honest answer is that it depends on how the house is held, whether there is a will, and who needs to sign. This article walks through the main rules so you know what to ask and what to gather before you list the property.

This article covers the law of New Brunswick.

The short answer: not strictly required, but recommended

The Probate Court of New Brunswick says probate is not strictly mandatory, but it recommends it, especially when the estate includes real property. A house is real property, so for most families who want to sell, probate is the practical route.

The reason is that, on death, the deceased person's real and personal property vests in the personal representative (the executor or administrator), notwithstanding any will. Anyone dealing with the land, such as a buyer, a lawyer or the Land Registry, will usually ask for proof that the person signing actually has that authority. Probate, or letters of administration, is that proof.

What the Land Registry looks for

Under Service New Brunswick's Form 41 acceptance criteria, a deed signed by a personal representative must be accompanied by the original will, letters probate or letters of administration. If none of the three is attached, it will not be registered. Unless the will names an executor or trustee, it must be probated before it can be used. That criteria document is dated, so confirm the current requirements with Service New Brunswick before you rely on it.

The two-year rule and why it is not a shortcut

The Devolution of Estates Act has an exception. Property that has not been disposed of by the personal representatives, or conveyed or distributed to the persons entitled, within two years after death vests in those beneficially entitled without a conveyance, whether or not probate or letters of administration have been taken out.

This rule describes who holds title once two years have passed. It does not mean a sale will be easy to complete without a grant. Whether a buyer's lawyer or the Land Registry will accept it for a particular property is a question to confirm with a lawyer before you count on it.

Getting the grant: will, no will, or a grant from elsewhere

• With a will: Letters Probate are granted on the will and officially recognize the executor's authority. The application is made in Form 2A or 2B.
• With no valid will: the Court appoints an administrator, usually a family member or close friend, who collects assets, pays debts and taxes, and distributes to those entitled. Administration may go to the spouse, next-of-kin, or the next-of-kin's spouse as the Court considers proper. The Court's checklist lists Forms 2E and 2F for this.
• With a grant from another jurisdiction: the Probate Court may seal a foreign grant once the required tax is paid, and it then has like force and effect in the Province. Letters of administration from elsewhere without a will must be resealed before they can support a personal representative's signature on a land registry form.

Applications are made to the probate office for the judicial district where the deceased lived or where their property was located, and the Court says to apply through the Clerk of the Probate Court. There are also timing rules: probate is not granted until seven days have passed from the death.

Probate tax on a house: value minus the mortgage

Probate tax is calculated on the value of the whole estate, including real property, but for real property the actual value of any encumbrance, such as a mortgage, is deducted. The rates were replaced for applications filed on or after June 12, 2026: $200 if the estate does not exceed $20,000; $200 plus $5 per $1,000 or part over $20,000 up to $100,000; and $600 plus $15 per $1,000 or part over $100,000.

In practice this means a mortgage on the house lowers the value the tax is based on. Your own figures will differ, and the Court provides a Probate Tax Calculator you can use to work out the amount.

You must also file a sworn statement of the total value of the estate before a grant is issued. The Court's checklist lists a detailed inventory and a copy of the death certificate, and payment of the tax before letters issue.

Before you distribute the sale proceeds, and what to do next

Selling the house is not the end of the executor's job. A representative who distributes assets without a clearance certificate from the CRA can be held personally liable for tax owing. The clearance certificate (Form TX19) is applied for only after returns are filed, assessments are received and amounts are paid or secured, not at the same time as filing. The CRA acknowledges the request within 45 days, and assessment can take up to 120 days.

• Find the original will and a certified death certificate; the Vital Statistics long form is $45 in person or by mail and $40 online.
• Find out whether the house has a mortgage and get a recent value.
• Decide whether a will exists and who is named as executor.
• Check whether any grant already issued is from outside New Brunswick.
• Confirm the current Form 41 requirements with Service New Brunswick.
• Notify the CRA with the death certificate and the will or grant.

If the family disagrees, an executor is unsure about acting, or a buyer is waiting, a lawyer can confirm the steps for your particular property.

Frequently asked questions