What Happens to a Power of Attorney When Someone Dies in Nova Scotia?

If you have been acting under a power of attorney for a parent, spouse or friend, their death changes your role right away. Many attorneys are unsure whether they can still pay a bill, move money or sign a document. The short answer is that the authority you held stops, and a different person takes over.

This article explains why the power of attorney ends, how the executor gains authority in Nova Scotia, and what you can sensibly do in the meantime. It is general information, not advice on your particular situation.

This article covers the law of Nova Scotia.

The power of attorney ends at death

A power of attorney, including an enduring power of attorney (one that continues despite the maker's incapacity), is a way for someone to act for an adult while that adult is alive. It ends when the adult dies. It can also end if the adult regains capacity and ends it, or if a court appoints an estate representative under the Adult Capacity and Decision-making Act.

This means that your authority as attorney does not continue after the death. How this applies to any step you are thinking of taking with the person's accounts, contracts or property depends on your situation, so it is worth confirming with a lawyer before you act.

A personal directive, which deals with personal care decisions, is different but follows the same logic: it is in effect only while the maker is alive and incapable of making the decision.

Who takes over: the executor and the Probate Court

After death, the person who deals with the estate is the executor named in the will. If there is no will or no executor can act, someone else may apply to administer the estate. Together these people are called personal representatives. The personal representative represents the deceased for real property as well as personal property and holds land as trustee for those entitled.

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, but land held as a joint tenant passes by survivorship without a grant.

Probate is not always needed. For assets with a named beneficiary or joint owner, an executor may only need probate if the asset holder, such as a bank, investment company or insurer, asks for it to prove the executor's authority, and that request is usually made only for sole-name assets.

What an attorney should do now

The law gives you no continuing power, but there is still useful work to do in a supporting role. Think of it as handing over cleanly.

• Stop using the power of attorney for any new transaction.
• Let the executor know the person has died and where the will is kept, if you know.
• Gather your records of what you did: statements, receipts, bills paid and any money you handled.
• Keep copies of the power of attorney document and any account details you used.
• Hold off on paying yourself or giving away belongings until you have confirmed your position.
• Ask a lawyer before taking any step you are unsure about, especially if you are also the named executor.

If you are both the attorney and the executor, your two roles are separate. The attorney role ended at death, and how the executor role begins depends on the will and your situation, so it is worth confirming with a lawyer.

How the executor takes over

Applications are dealt with by a Registrar of Probate for the district, and contested matters go to a judge. Form 8 (or 8A) is the application for a grant of probate. The application 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. Since April 1, 2024, the original will must be included as an exhibit to an affidavit.

An executor who does not want the job can renounce by completing Form 12 or another method satisfactory to the registrar, and the regulations set no deadline for this. However, an executor who has already acted in the estate may be treated differently, so confirm with the registrar before taking any step.

If a named executor is slow to decide, someone with an interest may apply to court by citation to force a decision, but not until at least 20 days after the testator's death unless the court finds circumstances warrant earlier.

What happens once the executor is in charge

Your records as attorney can help the executor with the inventory and the estate's accounts, particularly for the period before death.

What to do next

• Confirm who the executor is and share your records with them.
• Do not distribute or sell anything until the executor says what is needed.
• Ask the Registrar of Probate's office in your district how an application works if you are the executor.
• If you have concerns about how an attorney acted, note that the Public Trustee does not supervise attorneys and concerns go to the Supreme Court under the Powers of Attorney Act.
• Speak with a lawyer if there are disputes, missing records or uncertainty about your own role.

Frequently asked questions