Real Estate and Probate in New Brunswick: Transferring Property After Death

For most families in New Brunswick, real estate is the single largest asset in the estate — and it is the asset most likely to require formal probate before anything can be done with it. If the home was owned solely by the deceased, the title cannot be transferred to a beneficiary or listed for sale until the executor has legal authority to act. That authority comes from the Probate Court.

Why Real Estate Almost Always Triggers Probate

Unlike bank accounts, which some institutions will release informally for smaller amounts, the Service New Brunswick Land Registry will not process a property transfer or a transmission of title without a court-issued grant. The Land Registry requires either Letters Probate (if there was a will) or Letters of Administration (if there was not) before it will accept any documentation transferring the property out of the deceased's name.

This is not a technicality you can negotiate around. It is a legal requirement protecting the integrity of the provincial land title system. If the property is in the deceased's name alone, formal probate is effectively mandatory.

The one exception: Property held in joint tenancy with right of survivorship. When a home is registered as joint tenants — not tenants in common — the surviving owner takes the full title automatically at the moment of death by operation of law. The surviving owner registers the transmission at the Land Registry using a death certificate and a prescribed affidavit, with no probate required. This is a common arrangement for married couples and is why checking the exact title registration matters immediately.

The Land Registry Process: What Happens After the Grant

Once you hold the Letters Probate or Letters of Administration, the process for transferring real property involves the Service New Brunswick Land Registry through the PLANET system.

The executor must file a transmission document confirming that the property is being transferred from the deceased's estate, supported by:

• A certified copy of the Letters Probate or Letters of Administration
• An Affidavit of Value (confirming the value of the property at the time of transfer)
• The Land Registry recording fee: $85 per document

In practice, most executors engage a real estate lawyer for this stage. The PLANET system is not a public-facing portal in the way online banking is — it is accessed through licensed users, and the technical requirements for title registration are specific enough that errors create title defects that can block the property from being sold years later.

Selling the Property

If the will directs the executor to sell the property and distribute the proceeds, or if the beneficiaries agree to a sale, the executor has the authority to list and sell the estate property once the grant has been issued. The sale proceeds flow into the estate bank account and are distributed according to the will (or the intestacy formulas if there is no will).

Practical steps before listing:

• Ensure the property is properly insured. Standard homeowner policies often have vacancy clauses that limit coverage after 30 to 60 days of vacancy. Notify the insurer of the owner's death immediately and arrange vacant property insurance if needed.
• Assess whether the estate owes any property taxes or mortgage payments. These obligations do not stop at death — the estate continues to be responsible for them.
• Determine whether the property qualifies for the Principal Residence Exemption from capital gains tax. If the deceased used the property as a principal residence in the years of ownership, this exemption may eliminate or significantly reduce the capital gain on death.

Transferring Property to a Beneficiary Without Selling

If the will bequeaths the property directly to a named beneficiary — say, a child inherits the family home — the executor executes a transmission transferring title from the estate to the beneficiary. The beneficiary then holds title in their own name.

Critical tax point: The Real Property Transfer Tax in New Brunswick is 1% of the assessed value of the property. However, an explicit statutory exemption applies to transfers of property from an executor directly to a beneficiary under a will. This exemption saves the beneficiary a potentially significant amount — on a $350,000 property, the transfer tax would otherwise be $3,500. Make sure your real estate lawyer is aware of this exemption and confirms it applies before the transaction closes.

Out-of-Province Property

If the deceased owned real property in another province or country — a winter home in Florida, a cottage in Nova Scotia — the New Brunswick Letters Probate do not automatically authorize you to deal with that property. You will likely need to apply for an ancillary grant in that other jurisdiction, which involves presenting the New Brunswick grant to the foreign court and seeking recognition of your authority there. Each jurisdiction has its own rules and fees for this process.

Common Mistakes with Estate Real Estate

Listing the property before the grant is issued: Some families are in a hurry and want to get the house on the market quickly. An executor can sign a listing agreement and accept an offer before the grant is issued, but the sale cannot close — the transfer of title cannot be registered — until the grant is in hand. Signing a firm agreement before the grant is ready can create contractual obligations the estate cannot yet fulfill.

Misunderstanding capital gains on death: When the deceased's property is deemed to be disposed of at fair market value on the date of death (the general rule for non-principal-residence property), the estate must report any capital gain on the terminal T1 return. For a property that was a rental or a second home, this can generate a significant tax liability the executor must plan for before distributing other assets.

Not checking for liens or encumbrances: Before transferring property, confirm through the Land Registry that there are no outstanding liens, mortgages, judgments, or encumbrances on the title that must be discharged. Transferring property with undisclosed encumbrances creates title defects and potential liability.

The New Brunswick Probate Process Guide covers the complete sequence of steps for estate real estate — from securing the property after death through to the final title transfer — with plain-English explanations of Land Registry requirements, transfer tax rules, and when to involve a real estate lawyer.

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