Common Probate Mistakes in New Brunswick (and How to Avoid Them)

Most probate mistakes fall into one of two categories: errors that get your application rejected by the court clerk (adding weeks or months to the process), and errors in the administration itself that expose you to personal financial liability. Both categories are avoidable with the right information. These are the mistakes that come up most consistently in New Brunswick estate administration.

Mistake 1: Using the Wrong Probate Tax Calculation

The single most common reason executors are caught off guard in 2026 is using outdated probate tax figures. Most online guides, law firm blog posts, and even some secondary resources still reflect the pre-2026 fee structure. The old system charged modest amounts for smaller estates and a flat $5 per $1,000 on the full estate value above $20,000.

The 2026 restructuring changed this significantly. The current structure charges a flat $200 for estates up to $20,000, then $5 per $1,000 for the portion between $20,000 and $100,000, then $15 per $1,000 for everything above $100,000. For a $350,000 estate, the difference between the old and new rate is substantial. Applications submitted with incorrect tax payments are immediately rejected.

Fix: Calculate the tax using the current rate structure and verify the figures directly with the court before filing. Always pay by certified cheque, money order, or the approved payment method the specific registry accepts.

Mistake 2: Including Non-Probate Assets in the Estate Valuation

The estate valuation you submit to the court determines your probate tax obligation. Including assets that should not be there means overpaying — sometimes by thousands of dollars.

The following are commonly included by mistake but should generally be excluded:

• Assets held in joint tenancy with right of survivorship (they pass directly to the survivor)
• Life insurance proceeds where a named beneficiary is designated
• RRSPs, RRIFs, and TFSAs with named beneficiaries
• Real property located outside New Brunswick

Fix: Before preparing the estate inventory, systematically go through each asset and confirm how it is held. Get the account and property registration details from each institution.

Mistake 3: The Form 2I Witness Error

The Affidavit of Execution of the Will (Form 2I) is required with every standard probate application. It must be sworn by one of the witnesses to the will, confirming they watched the deceased sign it. The New Brunswick Probate Rules are explicit: the affidavit must not be sworn before the other witness to the same will.

If two people witnessed the will — call them Witness A and Witness B — and Witness A is completing Form 2I, Witness A must swear it before a commissioner of oaths who is not Witness B. Applications where one will witness commissions the affidavit of the other are rejected.

Fix: When you ask a will witness to complete Form 2I, make sure they swear it before a commissioner who has no connection to the will's execution. Notaries public, lawyers, and many bank employees are commissioned for this purpose.

Mistake 4: Wrong Regional Filing Format (The Moncton Rule)

New Brunswick is divided into judicial districts, and different districts have different local filing conventions. The Probate Court registries in Moncton, Bathurst, and Edmundston require a formally structured "Record on Application" — a specific format where documents are not stapled or bound, but secured with a large clip, with a numbered document index attached.

Executors who file without this format in these districts have their applications sent back. This mistake is especially common for executors who found guidance written for another district or for another province entirely.

Fix: Before submitting anything, contact the specific registry where you plan to file and confirm exactly what format they require. Do not assume the requirements are identical across all districts.

Mistake 5: Distributing Assets Before the Four-Month Window Closes

The Marital Property Act and the Provision for Dependants Act each give surviving spouses and dependants four months from the date of death to launch legal claims against the estate. Distributing assets before this window closes leaves the executor personally liable if a valid claim is subsequently made — and if the money is already gone, you may have to cover the shortfall personally.

This is not a risk that diminishes quickly. Even if the family seems unified, even if there are no obvious claimants, the statutory window exists and applies regardless.

Fix: Do not distribute any assets during the first four months after death. Use this period to obtain the probate grant, publish the Notice to Creditors, begin the tax filings, and gather asset documentation.

Mistake 6: Distributing Assets Before the CRA Clearance Certificate

One of the most serious personal liability risks in estate administration. Before making final distributions to beneficiaries, the executor must obtain a Clearance Certificate from the Canada Revenue Agency confirming all federal and estate tax obligations have been assessed and paid.

CRA processing time for a Clearance Certificate is officially four to six months after receipt of a complete application. Executors who skip this step to satisfy impatient beneficiaries expose themselves to personal liability for any taxes the CRA subsequently assesses — up to the total value of assets distributed.

Fix: File the terminal T1 return as early as possible. Once assessed, apply for the Clearance Certificate immediately. Only then make final distributions.

Mistake 7: Not Publishing the Notice to Creditors

New Brunswick does not legally mandate a Notice to Creditors publication. Because of this, some executors skip it. But an executor who distributes estate assets without formally inviting creditor claims remains personally exposed to any debt that surfaces after the distribution — for an indefinite period.

Publishing in the Royal Gazette for approximately $20, and waiting 30 days, is the most efficient way to close this exposure.

Fix: Publish the Notice to Creditors in the Royal Gazette immediately after receiving the grant. Wait for the creditor claim period to expire before distributing.

Mistake 8: Failing to Account for RRSP Tax Liability Before Distribution

The RRSP balances of the deceased can generate enormous tax liabilities when the estate is named as beneficiary or there is no named beneficiary. The entire balance is deemed income on the terminal T1 and taxed at the deceased's marginal rate — which, for large RRSPs at the top New Brunswick/federal combined rate, means roughly 50 cents of every dollar going to the CRA.

Executors who do not reserve for this liability before distributing other assets end up in a situation where the estate has no funds left to pay the CRA when the assessment arrives.

Fix: Identify all RRSP and RRIF balances early. Estimate the resulting tax liability with an accountant. Retain sufficient liquid assets in the estate to cover this obligation before distributing anything to beneficiaries.

Avoiding these mistakes is largely a matter of working through the administration in the correct sequence, with an accurate understanding of the specific New Brunswick rules. The New Brunswick Probate Process Guide includes a detailed "mistakes that cause rejection or delay" checklist, a step-by-step administration timeline, and clear guidance on the statutory requirements that protect executors from personal liability.

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