In Nova Scotia, what happens to your estate if you die without a valid Will is determined by the Intestate Succession Act.. The Act outlines who will inherit your assets and in what proportion. 

Determine if Your House Actually Forms Part of Your Estate

But first, you must confirm whether your house actually forms part of your estate or not. If you are the only person on title to the house, then it does.  However, if there are other people on title, you have to consider how title is held.

What is Joint Tenancy?

In Nova Scotia, it is common for spouses to take title to the family home as joint tenants. If property is held in joint tenancy, when one person dies, their name comes off the title and the surviving person(s) becomes the owner(s) of the property. In that case, the property does not form part of the deceased person's estate. Note, a bankruptcy by either party severs the joint tenancy, even after the bankruptcy is discharged.

What is Tenants-In-Common?

However, the default way to take ownership of property in Nova Scotia is as tenants-in-common. If the deed does not explicitly say owners are taking title as joint tenants, then they are deemed to have taken title as tenants-in-common.  If you own land as a tenant-in-common you own a specific percentage of the property. If it is not expressly outlined what percentage each person has, then you are deemed to each own equal shares.  When any one of those owners dies, their share of the property goes into their estate to be distributed. This frequently happens with family cottage properties owned by multiple family members.

Debts Must be Paid First, Including Those Secured Against the Property

Assuming your house does form part of the estate, before anything can be done with it, the first obligation of the person administering your estate is to pay off all of your debts. This would include any mortgage, lines of credit secured against the property and liens/judgments registered against the property. If there is not enough money in the estate of the deceased person to pay all of these debts, then the only option is for the property to be sold. The profit from the sale would first be applied to pay the deceased person's debts and the remaining balance would then be distributed according to the Intestate Succession Act.

Migration Required to Sell to Third Parties

In Nova Scotia, any property sold to a third party must be migrated to the Land Registration system. In theory, though this process any ‘holes’ in the chain of title of the property are cleared up. Often times this can be a lengthy and complicated process. If your property is not yet migrated, it may be a good option to consider migration prior to your death.

Probate Required to Determine Authority to Sell

Property of a deceased person can only be sold after the estate has been officially opened through the Probate Court (Grant of Probate if there is a Will, Grant of Administration if there is not). The purpose of Probate is so that it is not left to the Registry of Deeds to verify if a Will is valid and/or if the person claiming to have authority to administer the estate actually does have that authority.

Division of Assets Under the Nova Scotia Intestate Succession Act

Once the debts are paid, and the estate has been opened in the Probate Court, then the appointed administrator is tasked with distributing your estate as outlined in the Intestate Succession Act. Read our blog “Who has priority to Administer an Estate in Nova Scotia?” if you’re curious as to who can administer your estate. Loosely, if you’re married and have no children, your spouse gets everything. If you’re married, with children, your spouse gets a preferential share and the children divide the remainder evenly. If you have children and no surviving spouse, then the children split the estate evenly. If you have no spouse or children, your estate would go to your parents or if they have predeceased you, equally to your surviving siblings.

Administrators Discretion

Note, it is not required that the house be sold and the profit divided. Your administrator will have some discretion to determine whether it may make sense to sell the house property to one of your beneficiaries and pay the other beneficiaries’ inheritance out of other assets of your estate.

At the end of the day, if you have a specific idea as to how you want the assets of your estate will be distributed you are strongly advised to prepare a valid Will.

If you have more questions about the Probate Process in Nova Scotia or how to Administer an Estate if you the executor or personal representative, check out our other blogs on the topic:

DO I NEED TO PROBATE MY ESTATE?

A REAL-LIFE HORROR STORY – HE DIED WITHOUT A WILL

WHO GETS IT WHEN YOUR GONE? DEALING WITH YOUR HOME IN NOVA SCOTIA WHEN YOU PASS AWAY

WILL THE PUBLIC TRUSTEE IN NOVA SCOTIA HELP ME PROBATE AN ESTATE?

HOW DO I KNOW IF A NOVA SCOTIA ESTATE REQUIRES PROBATE?

WHAT IS PROBATE IN NOVA SCOTIA?

By: Dianna M. Rievaj

Have questions for us?:

If you have any questions about Estate Planning in Nova Scotia, you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers