How to Reduce Probate Fees in Nova Scotia: Joint Assets and Insurance

Probate fees are based on the value of the estate, so it is natural to ask which assets count and which do not. Planning ahead, or reviewing an estate as an executor, often starts with that question.

This article explains the rules for how the estate is valued in Nova Scotia, which kinds of assets sit outside that value, and the risks of rearranging things only to save on fees. The current fee amounts are not covered here and should be checked with the Probate Court.

This article covers the law of Nova Scotia.

What counts toward the fee

The value of an estate for tax, security and inventory is the gross value of personal property plus the fair market value of real property less registered mortgages and encumbrances. It is measured as of the date of death. A mobile home is treated as personal property.

Two points follow. A registered mortgage on a house reduces the land value counted, while unsecured debts are not deducted from personal property.

The figure is not necessarily final when you apply. After the grant, the personal representative files a full inventory in Form 29 within 3 months. The affidavit on Form 29 adjusts the probate tax under s. 87(1) of the Probate Act, which can mean no change, an additional payment, or a refund. That is one more reason to take care with valuations from the start.

Assets that fall outside the value

On the Form 8 application, the value of assets passing under the will excludes real property outside Nova Scotia, real property held in joint tenancy, and insurance. Real property held in joint tenancy therefore does not add to the value used for the fee on that form. How other kinds of jointly held property are treated depends on the facts, so it is worth confirming with a lawyer.

Property registered solely in the deceased's name cannot be transferred to beneficiaries without court approval; the Probate Court gives the executor the legal authority to transfer it out of the estate. When land is transferred, the grant is filed with the Land Registration Office.

For assets with a named beneficiary or joint owner, an executor may only need probate if the asset holder asks for it to prove authority; that request is usually made only for sole-name assets. The terms of each account matter, so confirm with the institution and a lawyer.

The risks of avoiding probate

Saving a fee is not the only goal, and moving assets around can backfire. The following are general cautions, and how they apply depends on your facts.

• Naming a joint owner can change who controls the asset during your lifetime, not only after death.
• Assets passing outside the will may not match the shares your will describes, which can leave an uneven result among family members.
• Outside assets can still be relevant to family claims. For example, a surviving spouse's application to divide matrimonial assets must be made within six months after probate or administration is granted, although the court may extend that time where the survivor did not know of the grant or lacked adequate opportunity, and a late application reaches only undistributed assets. A Testators' Family Maintenance Act application cannot be brought after six months from the grant, subject to an extension.
• If the court believes the value exceeds the inventory figure it may inquire into the matter, so valuations should be accurate.
• Creditors still matter. Distributing earlier than the law allows risks personal liability for unpaid claims, because the Royal Gazette advertisement runs six months.

Unmarried partners and intestacy

Some people hold assets jointly because they worry about what happens without a will. Be aware that unmarried common-law partners have no intestacy rights under the Intestate Succession Act; only married spouses and registered domestic partners count. Whether to use joint ownership or another arrangement for a partner is a question to take to a lawyer.

What to do next

An application for a grant of probate 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 the application or required material is incomplete, the registrar may issue a notice of rejection in Form 17. Gathering the right documents and a careful valuation first helps avoid delays.

• List each asset and how it is held: sole name, joint, or with a named beneficiary.
• Note which assets are insurance, held jointly, or located outside Nova Scotia.
• Check the mortgage position on any real property.
• Ask each financial institution what it requires after a death.
• Speak with a Nova Scotia estates lawyer before changing how any asset is held.

Frequently asked questions