The answers to the questions below explain the Probate Court and the law in a general way.
As each person's case is different, the information provided is not intended as legal advice.
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What is a Grant of Probate?
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A Grant of Probate is the document issued by the Probate Court of Nova Scotia which certifies that 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.
What is a Grant of Administration?
A Grant of Administration is the document issued by the Probate Court of Nova Scotia where a person dies intestate (without a valid Will). This Grant is given to a person appointed by the Court and gives conclusive evidence that 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.
What is a Grant of Administration with Will Annexed?
A Grant of Administration with Will Annexed is a document issued by the Probate Court of Nova Scotia 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.
Why do I need a will?
Making a Will enables you to decide who receives your real and personal property upon your death.
If the will leaves everything to me, why do I need to take out Probate?
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.
My common-law spouse has died without a will. Can I be appointed the administrator of his/her 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.
In Nova Scotia, are wills registered before a person dies?
When the Court has issued a "Grant of Probate" on or after October 1, 2001, the Act which is currently in force applies.
When the Court has issued a "Grant of Probate"
prior to October 1, 2001, the "old" Probate Act applies.
Also relevant are the .....
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.
Do I need a lawyer?
There is no legal requirement to hire a lawyer; however, when dealing with complex issues in estate matters, seeking legal assistance is advised.
Can I appoint someone who lives outside Nova Scotia to be the executor of my will?
Under the current Probate Act, a person
named in a Will as an executor can live outside Nova Scotia.
Upon proclamation of the new Probate Act, an Executor living outside Nova Scotia will be required to be bonded unless the Executor is the sole beneficiary of the estate; or there is a co-executor living in the Province; or the Will sets out that the non-resident executor does not have to be bonded.
I know there are no bills; why do I have to advertise the estate in the Royal Gazette?
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.
How can I contest a will?
Contesting the validity of a Will is complex; therefore, seeking legal assistance is advised.
My brother died without a will; he is divorced; who looks after his minor children's interests?
In this circumstance, a guardian needs
to be appointed under The Guardianship Act to receive and manage monies
on behalf of the minor children (this includes a parent). If a Guardian
has not been appointed, then the monies are held 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.
Why is a bond required when a person dies without a will?
When a person dies without a Will or when there is no Executor named in a Will, the court appoints, upon application, an individual or individuals 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.
What types of matters can be heard by a Judge and what types of matters can be heard by a Registrar?
Section 97(1) of the Probate Act sets out the matters which must be heard by a Judge of the Supreme Court - these matters are all concerned with real property issues (land). Section 97(2) sets out what matters which 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) 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.
Does a person's will become public once it is settled?
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.