Transferring a House After Death in Nova Scotia With a Grant of Probate

Once you hold a grant of probate, the house is usually the biggest asset left to deal with. You may be moving it to a beneficiary or selling it to a buyer, and either way the title has to change properly.

This article explains what the grant does, what you hold as personal representative, and what to confirm before you file. The exact filing documents and order depend on the Land Registration Office's requirements, which a lawyer can confirm.

This article covers the law of Nova Scotia.

Why the grant matters for a house

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.

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.

There is an exception. Land held as a joint tenant passes by survivorship without a grant. If the house was owned jointly, the process is different, and it is worth confirming how title was held.

Your role as personal representative

Under the Probate Act the personal representative represents the deceased for real property as well as personal property, and holds land as trustee for those entitled. That means you act for the beneficiaries, not for yourself, when dealing with the house.

If there are two or more personal representatives, land dispositions need all of them to agree, or a Supreme Court order.

Steps before the transfer

The grant is the key document, but the estate's other obligations should be in hand before you move the house.

• Obtain the grant. The application is dealt with by a Registrar of Probate for the district.
• Serve notice of the grant (Forms 24 to 27) on each person who is or may be entitled to share, within 30 days after the grant, with proof of service (Form 28) within 60 days.
• File the full inventory in Form 29 within 3 months of the grant.
• Keep in mind that the Royal Gazette advertisement runs six months. If no claim is filed, or assets enough to cover the filed claims are kept back, no action lies against you for paying debts and distributing, and after 12 months from the grant, or longer if the court allows, claims presented must be paid and distribution made. A representative who distributes to people whose claim or address they had no notice of is not liable for those proceeds, and a creditor who misses the advertising period may claim only with the court's prior consent.
• Keep accurate records of all property and debts of the estate.

Selling or transferring before creditors are dealt with can expose you to personal liability for unpaid claims. Distributing earlier than the advertising period risks that liability. Where a sale is needed to pay debts, the facts matter, so get advice before acting.

Mortgages and how the house is valued

For probate tax, security and inventory, the estate's value is the gross value of personal property plus the fair market value of real property less registered mortgages and encumbrances. A registered mortgage on the house reduces the land value counted, but unsecured debts are not deducted from personal property.

The estate is valued as of the date of death. If the court believes the value exceeds the inventory figure, it may inquire into the matter. A mobile home is treated as personal property.

Filing at the Land Registration Office

The grant is filed with the Land Registration Office when the land is transferred. The specific documents required and the order in which they must be filed depend on the Land Registration Office's current requirements and the type of transaction, such as a transfer to a beneficiary or a sale to a buyer.

Because errors can delay registration, it is sensible to have a lawyer prepare or review the documents. A lawyer can also confirm how any mortgage payout, discharge or purchaser's requirements fit into the sequence.

What to do next

• Confirm how title is registered: sole name or joint tenancy.
• Locate the grant and check the dates for notice of the grant and the inventory.
• Confirm whether all personal representatives are on board and will sign.
• Obtain the mortgage balance and any other registered encumbrances.
• Decide whether the house is going to a beneficiary or being sold, and who is entitled to the proceeds.
• Ask a lawyer to confirm the Land Registration Office filing documents and order before you sign anything.

Frequently asked questions