The short answer is, not usually. If there is a competent adult who is in any way interested in the estate, such as a next of kin, beneficiary under the Will or a creditor, the Public Trustee will generally prefer to renounce their ability to act as administrator or personal representative of an estate.

 Is Probate Even Required?

However, the first question to ask is, are you sure the estate actually needs to enter Probate. If you aren’t 100%, read our blog, How do I know if a Nova Scotia estate requires Probate? 

Governing Law: Probate Act & Intestate Succession Act

Once you are satisfied that the estate will need to be Probated, you must figure out who is allowed to apply. Probating an estate in Nova Scotia is governed by the Probate Act, often in conjunction with the Intestate Succession Act, which applies if a person dies without a valid Will.

 Who has Priority to be the Personal Representative?

Section 32 of the Probate Act outlines what order interested parties fall with respect to who has priority to administer an estate.  First are any spouse or children who live in Nova Scotia. Next are any beneficiaries, either next of kin or those named in the Will, who live in Nova Scotia. Third is the Public Trustee. Fourth are any beneficiaries who do not live in Nova Scotia and finally creditors. The court also has the authority to appoint any one else it thinks is appropriate (maybe a close friend who is not a relative).

 Beneficiary Unwilling to Act

Unfortunately, it can happen that there is a beneficiary in priority to the Public Trustee (spouse, child, adult beneficiary who lives in Nova Scotia) who, for whatever reason, feels they are not able to administer the estate. This might be for financial reasons, a hesitancy to be responsible for someone’s estate, an unwellness to get involved in a contentious estate, or simply lack of time.

Public Trustee has Authority to be the Personal Representative and Administer the Estate under the Public Trustee Act.

In those cases, in theory the Public Trustee has the authority under the Nova Scotia Public Trustee Act to act as the personal representative of the case.  However, due a limit of available resources to manage private estates, typically the Public Trustee will decline to administer an estate if there is anyone else at all available to take on the job.

 Examples when the Public Trustee might act as Personal Representative and Administer the Estate

Situations where the Public Trustee may agree to become the Personal Representative of an estate are cases where the heirs or named beneficiaries are unable to act for reasons other than finances.  This might be if all of the heirs/beneficiaries are incompetent, infirm (perhaps hospitalized and physically unable to administer the estate) or unknown. The Public Trustee may also apply to Act if they were the guardian of a person who died, or if all of the heirs and beneficiaries are minors.

 If you are in a position where you believe you are responsible to administer an estate, but for whatever reason feel you are not able to and you are not aware of any other potential beneficiary who would be willing to act, you can contact the Public Trustees office for direction.

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

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

WHAT HAPPENS TO MY HOUSE IF I DIE WITHOUT A WILL IN NOVA SCOTIA?

WHAT IS PROBATE IN NOVA SCOTIA?

If you have any questions about the Administering an Estate 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.

By: Dianna M. Rievaj, MBA, LLB - Founding Lawyer

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