Probate In New Brunswick: When It's Needed

In New Brunswick, probate is often required when the deceased owns an interest in real estate or land. It is also generally required by financial institutions as proof that an individual has been certified by a court to act on behalf of an estate. Probate is the process of validating a will and confirming the authority of the individual named as the executor of the will. The executor is responsible for managing and distributing the estate. While probate of a will is not mandatory, it is recommended, especially when the estate includes real property.

When is a grant of probate required?

A grant of probate is required when a deceased person's estate includes real property, such as land or a home. It is also generally required by financial institutions as proof that the executor of the will has been certified by a court to act on behalf of the estate. This is particularly important when dealing with banks or land transfer agencies.

In New Brunswick, the Probate Court has the power to grant, recall, revoke, and supervise the administration and distribution of estates. The Probate Court can issue Letters Probate, which provide official recognition of the authority of the executor over the testator's estate. These letters establish the validity of the will and certify that it was properly registered with the court.

While probate is not mandatory in New Brunswick, it is recommended, especially when real property is involved. It is a procedure that validates the will and confirms the appointment of the executor.

There are some exceptions where a grant of probate is not required. For example, it is usually not necessary to transfer jointly owned real estate, insurance proceeds payable to a named beneficiary, certain types of bank accounts, registered savings plans with a named beneficiary, certain corporate securities, automobiles, and other vehicles.

The process of obtaining a grant of probate can vary depending on the specifics of the case, but it generally involves determining the type of grant needed, completing the required forms, and submitting them to the appropriate court. In some cases, legal assistance may be advisable or necessary.

What are the exceptions?

While probate is generally required in New Brunswick, there are some exceptions to this rule. Firstly, probate is not mandatory and can be avoided if the estate can be administered informally without the need for court involvement. This is more likely to be possible for smaller, less complex estates.

Probate is also not always required when there is a valid will in place. If the will is well-written, the assets are straightforward, there are no disputes over heirs or asset division, and there are no minors involved, probate may not be necessary.

Additionally, certain types of assets may be inherited outside of the probate process, even if there is no will. These include:

• Property titled to a living trust
• Life insurance proceeds with a named beneficiary
• Funds in an IRA, 401(k), or other retirement accounts with a named beneficiary
• Securities held in a transfer-on-death account
• Payable-on-death bank accounts
• Property owned in joint tenancy or tenancy by the entirety with someone else

It's important to note that the rules and procedures for probate can vary regionally, so it's always best to consult with a local legal professional or refer to the New Brunswick probate code for specific guidance.

How do you obtain probate?

Probate in New Brunswick is the formal, court-supervised process of carrying out a person's last wishes by validating their last will and testament, confirming the authority of the individual named as the executor of the will, resolving any outstanding debts or taxes, and distributing any remaining assets to rightful heirs.

The Probate Court of New Brunswick grants Letters Probate, which provide official recognition of the authority of the executor over the testator's estate. Letters Probate establish the validity of a will and certify that the will was properly registered in the Probate Court.

To obtain Letters Probate, you must apply through the Clerk of the Probate Court. You may apply either in the Judicial District where the testator resided or where they owned property. The Probate Court Act outlines the procedure before the Probate Court, and there are associated fees and taxes to consider.

While probate of a will is not mandatory, it is recommended, especially when the estate includes real property. Even when an application is required, it is often simple and not costly to obtain.

If you are the named executor of a will, an initial consultation with a lawyer can provide peace of mind and guidance in assisting you with the process of securing authority and administering the person's estate.

It is important to note that probate can be a complex and lengthy process, with many delays. However, there are methods available to expedite the disbursement of inheritance funds, such as a probate advance offered by firms like InheritNOW.

How much does probate cost?

The cost of probate in New Brunswick depends on several factors, including the value of the estate, the complexity of the process, and whether or not a lawyer is hired. On average, probate and settling an estate cost around $15,000, but this can vary depending on the specific circumstances.

The fees payable to the Probate Court for Letters Probate are based on the value of the estate. The fee schedule is as follows: $5.00 per $1,000 of the estate being administered. If a lawyer is hired to prepare and submit the application for Letters Probate, their fee is separate from the probate fee. The tariff of fees for lawyers' services in settling an estate is set out in the legislation.

It is important to note that the money spent on probate and estate settlement comes from the estate itself, not the personal funds of the executor or representative. The executor or representative is typically compensated for their time and efforts from the estate.

In some cases, an inheritance advance may be obtained to access inheritance funds quickly, even before the completion of probate. This option may be beneficial for beneficiaries who need immediate access to their funds. However, it is essential to carefully consider the terms and conditions of such advances, as they may include fees or repayment obligations.

What is the process?

Probate is the process of validating a will as the last will and testament of a deceased person and confirming the authority of the individual named as the executor of the will. The executor is responsible for managing and distributing the estate. In New Brunswick, the Probate Court grants Letters Probate, recalls or revokes Letters Probate, and supervises the administration and distribution of estates.

The process of probate in New Brunswick involves the following steps:

• Contact the court
• Get appointed as the personal representative
• Submit the will, if it exists
• Inventory and submit valuations of all relevant assets
• Have the court and beneficiaries approve the will and asset distribution
• Distribute the assets to the beneficiaries

As the executor or personal representative of an estate, you are also responsible for:

• Filing a petition for probate to the probate court in the country of the deceased
• Deciding if there are any probate assets
• Managing and locating these assets
• Valuing and appraising the estate's assets
• Receiving payments and paying taxes on behalf of the estate
• Setting up an estate checking account and EIN
• Interpreting the will
• Communicating and working with heirs/beneficiaries
• If there is no will, distributing assets according to local law
• Officially notifying creditors
• Following all legal deadlines
• Paying funeral bills
• Filing estate tax returns
• Submitting a death certificate
• Submitting distribution receipts and officially closing the estate

There are a few exceptions where probate is not required in New Brunswick. Probate is generally not necessary for transferring jointly owned real estate, insurance proceeds with a named beneficiary, certain types of bank and investment accounts, registered savings plans with a named beneficiary, certain corporate securities, automobiles and other vehicles, Canada Pension Plan Survivor's Benefits, and Veteran's pensions.

Additionally, if it is a very small estate or the estate is left entirely to the executor or surviving spouse, probate may not be necessary.

The first step in the probate process is to determine the type of grant that needs to be requested from the Court. There are three main types of grants:

• If the will names an executor, that person should apply for a grant of probate.
• If the will does not name an executor or the named executor is unable or unwilling to act, a grant of administration with the will annexed is required.
• If the deceased died without a will, a potential personal representative will need to obtain a grant of administration.

For more complex situations, other types of grants may be sought with legal assistance. All the required forms must be filled out to apply for the appropriate grant. While a lawyer is not required to complete the forms, legal advice is recommended.

The fees for probate in New Brunswick depend on the value of the estate and there are both probate tax and probate fees. All probate applications are subject to probate tax, but standard requests for probate are generally exempt from probate fees. The probate tax is calculated based on the value of the estate.

The designated forms for probate in New Brunswick can be found on the New Brunswick Probate Court website. The probate application should be filed at the New Brunswick Probate Court location in the jurisdiction where the deceased resided at the time of death or where the deceased's property is located. A list of Court locations is available online.

Frequently asked questions