When a person dies, someone must deal with the person’s estate, which includes the money, property, and possessions they left behind. Whoever deals with the estate must collect all the money, pay any debts, and distribute what is left to those people entitled to it. To get this authority, they usually need a legal document called a “grant” from the Probate Court.
Role of the Probate Court
The Probate Court provides for the protection of heirs, legatees, and estate creditors. It provides a forum for adjudication without monetary limits and holds the authority for the appointment of executors, administrators, appraisers, and guardians in relation to all estate matters within its jurisdiction.
The Probate Court also has the supervisory authority for the proper management and distribution of estate assets, the approval of legal fees, as well as the setting of executors' and administrators' commissions and expenses.
Probate Court sits in courthouses across the province. Its proceedings are heard by Justices of the Supreme Court and the Registrar of Probate. All relevant estate documents are recorded and stored at the offices of the Registrar in each district.
A Grant of Probate is the document issued by the Probate Court that certifies the will was properly proved to be the last will of the deceased and registered in the Court. The Grant signifies that administration of the testator's property was properly granted by the Court to the executor(s) named in the will.
The Grant of Probate applies to all property, including all land, money, and other things owned by the deceased, located anywhere in the province. The executor takes his or her authority to deal with the estate from the will. The Grant of Probate is evidence of the executor's authority.
A Grant of Administration is the document issued by the Probate Court when a person dies intestate (without a valid will). This Grant is given to a person appointed by the Court and gives conclusive evidence the person to whom the Grant was issued has authority to administer the estate of the person who died without a will. The personal representative (administrator) derives his or her authority solely under the Grant, unlike an executor who derives his or her authority from the will.
A Grant of Administration with Will Annexed is a document issued by the Probate Court to a person appointed by the Court when the will does not name an executor or the named executor cannot or will not act. In these cases, the will must be proved in the same way as if a Grant of Probate had been applied for.
Property registered solely in the name of the deceased person cannot be transferred to the beneficiaries without court approval. The Probate Court grants the legal authority to the Executor to transfer the property out of the estate.
Under the current Probate Act, a common-law spouse cannot apply as an heir at law. Under certain conditions, a common-law spouse may be able to apply as a creditor or as a person having a cause of action.
No, in Nova Scotia, wills are not registered before a person dies. Your will should be kept in a safe place and your Executor(s) should be told where it is located.
There is no legal requirement to hire a lawyer for Probate Court. However, when dealing with complex issues in estate matters, seeking legal assistance is advised.
Advertising in the Royal Gazette is a statutory requirement for all estates opened in Nova Scotia. Once the six-month advertisement is complete, the estate can proceed to settlement and distribution.
Contesting the validity of a will is a complex process. Anyone wishing to do so is advised to seek legal assistance.
In this situation, a guardian needs to be appointed under the Guardianship Act. A guardian can receive and manage monies on behalf of the minor children. The guardian can be the surviving parent. If a guardian has not been appointed, the monies are held in trust by the Public Trustee.
If complex issues arise, the appointment of a Guardian Ad Litem is required to represent the legal interests of the minor children.
When a person dies without a will or when there is no executor named in a will, the Probate Court may hear an application to appoint an individual(s) to carry out the duties as personal representative(s) of the estate. Before the appointment is made, the law requires security be posted with the Court to protect the persons who have a financial interest in the estate, including possible creditors.
Section 97(1) of the Probate Act sets out the matters that must be heard by a Justice of the Supreme Court. These matters deal with real property issues (land).
Section 97(2) of the Probate Act sets out the matters that will be heard by a Judge of the Probate Court, unless all parties agree that the issue can be heard by the Registrar of Probate.
Section 97(3) of the Probate Act provides that all other matters relating to probate shall be heard by a Registrar of Probate.
Section 99(1) of the Probate Act allows a Registrar of Probate to transfer any probate matter, upon application, to the Judge of the Probate Court.
A will must be filed at the Probate Registry when a Grant of Probate is sought. Once a will has been filed, it is available to the public. Anyone can view an original will on file and can request a copy for a small charge. The will remains, permanently, as a public record.
The following resources may be helpful for individuals with dealing with estates and other probate matters:
The Probate Court and the Legal Information Society of Nova Scotia have developed helpful resources if you are planning to represent yourself in court on a probate matter.
The Legal Information Society of Nova Scotia has developed an online app and resources to help individuals create a will, authorize power of attorney, and plan for other end-of-life matters.
This guide to dealing with an estate will help you decide whether you need the Probate Court and how to complete the application forms if you do.
Filing court documents can be complicated and stressful. The Registrar of Probate has developed some tips to make the process easier for lawyers and others dealing with matters in the Probate Court.
The Probate Act is provincial legislation that governs proceedings in the Probate Court. When the Court has issued a Grant of Probate on or after October 1, 2001, the the Act that is currently in force applies.
When the Probate Court has issued a Grant of Probate prior to October 1, 2001, the older version of Nova Scotia's Probate Act applies.
Nova Scotia also has regulations in place related to Probate Court practices, procedures and forms. These were developed under Section 106 of the Probate Act.
Wondering how much your legal matter will cost? There are applicable fees and taxes set by the provincial government that you must pay for wills, estates and other Probate Court matters.