The law gives the Public Trustee the right to apply to probate the estate of a person after their death. There are others who may also apply. Both the Probate Act of Nova Scotia and the Public Trustee Act of Nova Scotia set out who has priority.
The following section of the Probate Act sets out who has the right to administer an estate in Nova Scotia, which includes a person’s money and property, when someone dies intestate – without a will:
1. In order of priority they are:
2. Where there is no person entitled to a grant of administration, the court may grant administration to any person the court thinks fit.
3. Where more than one person is entitled to administration, the court may grant administration to one or more of such persons.
4. Any person who is entitled to a grant under clause (1)(a), (b) or (d) or, where there is more than one of such persons, all such persons may, with the written consent of the Public Trustee, nominate another person, including a trust company, as administrator of all or part of the property of a deceased person.
5. Where a person nominates another person pursuant to subsection (4), the right to the grant of the person who nominated the other person passes to that other person.
6. Where an infant is the only executor of an estate and no person is named in the will as an alternate executor to act as executor in the event of the person who is the infant predeceasing the testator or being unable or unwilling to act, the court shall reserve the right of the infant to the grant but shall grant temporary administration of the estate with the will annexed to the guardian of the infant or such other person as the court thinks fit until the infant attains the age of majority.
7. Where an infant is the only executor of an estate but another person is named in the will as an alternative executor to act as executor in the event that the person who is the infant predeceases the testator or is unable or unwilling to act, the court shall reserve the right of the infant to the grant, but shall grant temporary administration of the estate to the alternative executor until the infant attains the age of majority. 2000, c. 31, s. 32.
Common-law spouses are not recognized as legal spouses under the Probate Act unless the couple has signed a “domestic partnership declaration” and registered it with the Office of Vital Statistics of Nova Scotia.
The Public Trustee is listed as the third person in line to administer an estate. If someone who is listed after the Public Trustee wants to administer the estate, they must ask the Public Trustee to renounce, or step aside, before they can apply.
The Public Trustee may or may not renounce. The Public Trustee considers many factors before deciding whether it will administer the estate or whether it will step aside and allow someone else to apply.
These are some of the factors it considers:
If you are listed below the Public Trustee on the priority list and want to administer an estate, you will need to contact the Public Trustee’s Office. The Probate Court must have a document to show that the Public Trustee has renounced, or stepped aside, before it can grant you the right to administer the estate.
The Public Trustee also has priority to administer an estate in these situations: