Probate, the legal process of validifying and administering a Will, is typically initiated by filing a petition with the appropriate court. The process can be complex and the courts recommend, though do not require, that a lawyer with experience in probate help you with this. The petition is usually filed in the province where the deceased person resided at the time of their death. Once filed, the process of probate begins. The first step is proving the validity of the Will, meaning that the Will meets the legal requirements of a Will in Nova Scotia and is the last Will of the deceased. Once this is proven, the court will issue a Grant of Probate which gives the appointed executor authority to deal with the estate as laid out in the Will. The assets and debts will need to be identified first. In Nova Scotia, part of this process includes advertising in the Royal Gazette for 6 months to see if anyone has a debt claim. Once the advertising is complete, and all outstanding debts and taxes are paid, the remaining assets can be distributed to the beneficiaries.
12 common questions regarding probate in Nova Scotia
1. What happens if there is no Will?
If there is no Will, the deceased person is considered to have died intestate. In such cases, the estate is distributed according to the laws of intestacy in the jurisdiction, typically prioritizing immediate family members. The court will require a lawyer to file an application to appoint a person to handle the estate as no executor has been appointed, this will cost the estate typically between $2,000-$3,000. This court appointed executor will then have to take the estate through the normal process of probate.
2. Is probate necessary in all cases?
Probate requirements vary depending on the jurisdiction and the specific circumstances. In some cases, probate may not be necessary if the deceased person’s assets were jointly owned, had named beneficiaries (such as life insurance policies or retirement accounts), or fell below a certain threshold defined by law.
3. What assets go through probate?
Assets that typically go through probate include real estate solely owned by the deceased person, bank accounts, investments, personal belongings, and other assets held solely in the deceased person’s name.
4. How long does the probate process take?
The duration of the probate process can vary widely depending on the complexity of the estate. Commonly the minimum length of time it will take to complete is a year, but can take much longer if the Will, appointment of executor or distribution of the assets are contested. Part of the reason for the length of time it takes to process is that in Nova Scotia, after a Grant of Probate has been issued, the estate must be advertised in the Royal Gazette for a minimum of 6 months.
5. How much does probate cost?
Probate costs can also vary depending on factors such as the size of the estate, legal fees, court fees, and other expenses. These costs are generally paid from the estate’s assets. The amount paid in probate tax is determined by The Nova Scotia Probate Act.
6. Can I avoid probate?
There are estate planning strategies that can help minimize the need for probate, such as establishing a revocable living trust, joint ownership, and designating beneficiaries for certain assets. Consulting with an estate planning lawyer can provide guidance on options available in your specific situation. Some law firms offer Advanced Estate Planning packages where there is a focus on reducing or avoiding probate for larger estates.
7. Can the probate process be contested?
Yes, the probate process can be contested if there are valid reasons to challenge the Will or the actions of the executor. Common grounds for contesting include lack of capacity, undue influence, fraud, or improper execution of the Will.
8. Can the terms of a Will be changed during probate?
Generally, the terms of a will cannot be changed during the probate process. However, if all interested parties agree, it may be possible to modify the terms through a legal process called a family settlement agreement or a similar mechanism available in the jurisdiction.
9. What is the role of the executor or personal representative?
The executor or personal representative is responsible for managing the probate process. Their duties may include gathering and inventorying assets, paying debts and taxes (This may involve notifying creditors, resolving any disputes, and filing the final tax return for the deceased person), notifying beneficiaries, and distributing assets according to the laws of intestacy.
10. What are the responsibilities of the beneficiaries?
Beneficiaries generally have the right to receive their designated share of the estate. Their responsibilities primarily involve cooperating with the executor, providing necessary documentation, and following any instructions or requirements outlined in the Will or probate process.
11. Can property be sold during the probate process?
In most cases, property can be sold during the probate process. However, the sale may require court approval and the involvement of the executor or personal representative.
12. What happens if there are minor children involved?
If minor children are involved, the probate court may appoint a guardian to ensure their well-being and manage any inheritance they may receive. The guardian may be someone designated in the deceased person’s Will or a court-appointed individual.
Brookshire Law Office, your probate partners
To ensure a smooth probate process, it’s advisable to consult with an experienced probate lawyer who can guide you through the legal requirements, assist with document preparation, and provide support in handling any complexities that may arise. Alan Freckelton is Brookshire Law Office’s probate lawyer. You can book an appointment online or call our office at 902-835-2726.
The above is provided for informational purposes only and does not constitute legal advice — contact a lawyer to discuss your personal circumstances and learn your options.
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