What Happens If You Die Without a Will in Nova Scotia

When someone dies without a will, they are said to have died intestate. A relative then has to work out who can manage the estate and who is entitled to receive it. The rules are set by law rather than by what the person might have wanted.

This article explains in plain terms what generally happens in Nova Scotia, who can step in, and which time limits family members should know about. Your own facts may change the answer, so use this as an overview.

This article covers the law of Nova Scotia.

The estate still goes through the court

Property registered solely in the deceased's name cannot be transferred to anyone without court approval. With no will, there is no named executor, so someone applies for a grant of administration, using Form 9 (or 9A). If there is a will that does not name a usable executor, Form 10 (or 10A) is used for administration with will annexed.

Applications are dealt with by a Registrar of Probate for the district, and contested matters go to a judge. As with any estate, a grant is generally required to sell or transfer land in the deceased's name, but land held as a joint tenant passes by survivorship without one.

Who can manage the estate

The person who steps in is called a personal representative. The Public Trustee ranks third in priority to administer an intestate estate, after the spouse or resident children and then residents who are heirs. The Public Trustee searches for heirs, and if none are found the funds go to the Department of Finance, though heirs who appear later can still claim. Its priority is higher if it previously acted as trustee, guardian or custodian for the deceased.

Because the Public Trustee ranks behind the spouse or resident children, the role is generally open to them first. If several people want the role, or relatives disagree, a lawyer can explain the options. A contentious application starts with a Notice of Application (Form 45) and affidavit (Form 46).

How the estate is shared

Under section 4 of the Intestate Succession Act, if the net estate does not exceed $50,000 and there is a surviving spouse (and issue), it goes to the spouse. Otherwise the spouse takes $50,000 as a charge on the estate with interest from the date of death, plus one-half of the residue if there is one child, or one-third if there is more than one child, and the children share the rest.

The surviving spouse may take the matrimonial home instead of the $50,000 if it is worth more, or as part of the $50,000 if it is worth less. Only married spouses and registered domestic partners count; unmarried common-law partners have no intestacy rights under the Act.

Who inherits when there is no spouse or child depends on further rules in the Act that are worth confirming with a lawyer for your family.

Notices, creditors and timing

• Within 30 days after a grant is issued, the personal representative must serve notice of the grant on each person who is or may be entitled to share, with proof of service due within 60 days.
• The Royal Gazette advertisement is required for every estate and runs six months, after which the estate can move to distribution.
• Distributing earlier risks personal liability for unpaid claims.
• A full inventory in Form 29 is due within 3 months of the grant.

A surviving spouse may also have a separate right. An application to divide matrimonial assets must be made within six months after probate or administration is granted, though the court may extend that where the survivor did not know of the grant or lacked adequate opportunity, and a late application reaches only undistributed assets. This right is in addition to rights on intestacy.

What to do next

• Look carefully for a will before assuming there is none.
• List the person's assets, debts and family members.
• Agree within the family on who will apply to act, or get advice if you cannot agree.
• Contact the Registrar of Probate for the district about the application.
• Keep accurate records of all property and debts.
• Get advice early if a spouse, common-law partner or minor child is involved.

Frequently asked questions