The most common way that people transfer title to land is by sale. 

There is a well-established process for buying and selling land in Nova Scotia. A written Agreement of Purchase and Sale is required. An Agreement of Purchase and Sale is a formal offer made by the buyer to the seller to buy the property mentioned in the agreement. A seller can accept, reject, counteroffer, or not respond to the Agreement of Purchase and Sale. 

The agreement must be in writing and signed by the parties.  If you use a realtor, your realtor will use the standard form endorsed by the Nova Scotia Real Estate Commission. 

Do not sign an Agreement of Purchase and Sale without consulting a property lawyer first. 

When the sale is complete, the title holder(s) prepares a deed with the help of a lawyer, which the purchaser’s lawyer registers in the Land Registry System. Once the deed is registered in the Land Registry Office, the purchaser becomes the property's title holder and gets property rights.

Here is more detailed information about:

• Buying a home
• Selling your home

Sometimes, people decide to give land as a gift. When people want to give land as a gift, they’re often surprised that there are costs involved, and there can be tax implications as well. 

Transferring land as a gift is basically the same as transferring land via sale; it’s just that the terms of the underlying agreement are different. With a gift there’s no money exchanged, so an Agreement of Purchase and Sale is not required. However, the transaction still needs to be properly documented. The gift giver must sign a deed confirming the transfer of title.

If you want to give property as a gift

If you want to give someone land as a gift, consult with a property lawyer so that they can advise you about the tax consequences and the best way to give the gift based on your circumstances. 

Because the process for gifting land is basically the same as selling it, the cost of a lawyer is similar whether you’re selling your land or giving it away. 

In Nova Scotia, land given as a gift is not subject to deed transfer tax. However, if the property you’re giving away is not your principal residence, capital gains tax will apply even if you give the land away for free. That’s because even if you give your land away, the Canada Revenue Agency deems the transfer a sale at fair market value. 

If the person you plan to give the property to won’t be living in the property as their principal residence, there will be capital gains tax implications for them in the future if they decide to sell it. 

If someone wants to give you property as a gift

Promising land as a gift is not worth much if the proper actions do not follow it up. The intention to give something as a gift is usually insufficient to protect the receiver. The gift needs to be completed by the gift giver before the receiver can take any benefit from it. 

If someone says they want to give you land as a gift, say thank you, confirm that they’re serious, and politely ask them to consult with a property lawyer so they can put that in writing for you. 

Don’t assume the land is yours just because they said they want to give it to you. Until you see legal documentation like a signed gift agreement, a deed, a will, or the terms of a trust, the gift is just an idea. 

When someone makes a Will, they usually appoint a person to act as the personal representative of their estate. That person is called the executor. Part of their role is to deal with the estate assets according to the instructions in the Will. 

When a landowner leaves someone their land in their Will, probate is required. Probate is the legal process of validating and administering the Will or appointing an administrator if there is no Will. 

The personal representative of the estate will need to obtain a Grant of Probate before they can transfer title to the land. A Grant of Probate is a legal document that confirms the validity of the deceased person's Will and gives the executor the authority to manage and distribute the estate. 

After the personal representative gets the Grant of Probate, there is a six-month advertising period during which the personal representative is not supposed to transfer the land (or any other estate assets).

The estate must pay some capital gains tax (even if the land was the deceased's principal residence). Capital gains accrue to the estate from death until the land is transferred to the beneficiary. The personal representative of the estate will need to use estate assets to pay any taxes owed. 

Unless the Will says otherwise, the personal representative is responsible for the land until they transfer it. That means the presumption is that they are responsible for things like: 

• maintaining the property
• paying the mortgage (if applicable)
• paying property taxes
• making decisions about land use (including decisions about occupancy). 

The beneficiary does not always receive the land. It depends on the financial situation of the estate as a whole. For example, the beneficiary may not receive the property if: 

• the deceased person was insolvent, 
• a lender was foreclosing on the property, or
• the deceased mortgaged the property on terms that the estate or the beneficiary can’t handle. 

If you plan to leave someone land in your Will, consult with a wills and estates lawyer for estate planning advice.

When a landowner dies without a Willl, probate is required to administer the estate. If you die without a valid Will, someone must manage your estate. This person must apply to the Probate Court to be appointed as the administrator of the estate.

The administrator is usually a close family member or someone else with an interest in the estate. Nova Scotia law prioritizes family members, such as spouses, children, or relatives. It may not necessarily be someone you would have chosen. If there’s no one appropriate or willing to take on the role, the court may appoint a third party. 

The appointed administrator will be responsible for handling the estate, including managing assets, paying debts, and distributing the remaining property. 

They will be required to secure a bond as a form of insurance. In Nova Scotia, the bond is typically 1.5 times the estate's value. It ensures the administrator acts in good faith and appropriately manages the estate. 

After the personal representative gets the Grant of Administration from Probate Court, there is a six-month advertising period during which the personal representative is not supposed to transfer the land (or any of the other estate assets).

The estate will have to pay some capital gains tax (even if the land was the deceased's principal residence). Capital gains accrue to the estate from the date of death until the date that the land is transferred to the beneficiary. The personal representative of the estate will need to use estate assets to pay any taxes owed. 

The personal representative is responsible for the land until they transfer it. That means they are responsible for things like: 

• maintaining the property
• paying the mortgage (if applicable)
• paying property taxes
• making decisions about land use (including decisions about occupancy). 

Who gets the land?

When someone dies without a will, that is called dying intestate. Nova Scotia has a law called the Intestate Succession Act, which states who the beneficiaries are if a person dies without a will. 

The intestate law also applies if you do not deal with all your property in your will, either intentionally or unintentionally. In this case, you are said to die partially intestate. The part of your estate not covered in your will is distributed according to the Intestate Succession Act.

Under the Intestate Succession Act the administrator of your estate distributes your property to the people considered to be your nearest relatives under the Act. The rules are not flexible. The distribution may be different from what you would want.

The basic rules are:

• If you are survived by your legally married spouse and have no children, all your property goes to your spouse
• If your legally married spouse survives you and you have one child, the first $50,000 goes to your spouse. The rest is equally divided between your spouse and child.
• If your legally married spouse survives you and more than one child, the first $50,000 goes to your spouse. One-third of the rest would go to your spouse, and two-thirds to your children.
• If you are survived by your children but no legally married spouse, your whole estate would go to your children, each getting an equal share.
• If you had no legally married spouse or children, your whole estate would go to your nearest relatives by blood or adoption, by order of priority as listed in the Intestate Succession Act. Relatives by marriage are not included.

A surviving legally married spouse will always get up to $50,000 from the estate before anyone else. If your surviving legally married spouse is not a joint owner of the family home, they may choose to take the home and household contents instead of, or as part of, the $50,000.

No protection for common-law partners, stepchildren, or grandchildren

The Intestate Succession Act does not protect common-law partners, stepchildren, or grandchildren.  So, it is essential to make a will if you want your common-law partner, stepchildren, or grandchildren to inherit something from your estate when you die.

Here’s why:

• If you die without a will, only your surviving married spouse or registered domestic partner can inherit. Common law partners are not included as a 'spouse' under the Intestate Succession Act. Your common-law partner will not automatically inherit your property or money that is only in your name. Your common-law partner may have to go to court to make a claim on your estate, and may not be successful.
• If you die without a will, only your biological and adopted children can inherit. Stepchildren are not included. They would have to go to court to make a claim on your estate, and they may not be successful.
• If you die without a will, your grandchildren will only inherit from your estate if their parent (your child) died before you.

Making a Will is important

If you die without a will, there will be extra steps in the process of settling your estate, which will mean additional costs and delays. This may add to your family’s pain and distress. It will also mean that there will be less left to distribute.

Also, family members may disagree and argue about how you intended to distribute your property.

Here is more information about making a will. 

Another way that people sometimes transfer their land is by creating a trust. 

A trust is a legal arrangement where the property owner (the settlor) transfers property (such as land) to a trustee, who holds and manages the property on behalf of one or more beneficiaries according to the terms set out in the trust document. 

In a trust, the trustee holds the legal title to the property (so the property is in the trustee’s name), but the benefits of the property, like any income or rent, go to the beneficiary.

To transfer land by trust

You must consult a lawyer, who will advise you on the pros and cons of using a trust. 

If you decide to proceed, the lawyer will create a trust agreement. This document outlines the terms of the trust, including who will manage the property (the "trustee") and who will benefit from it (the "beneficiaries").

The property owner will have to transfer the land to the Trust. The settlor officially transfers land ownership into the trust by changing the property title to reflect that the trustee now holds the land on behalf of the beneficiaries. The settlor no longer owns the land directly but has given control to the trustee.

The trustee manages the land and is responsible for managing the property according to the terms of the trust. This could involve deciding how the property is used, rented, or sold. The trustee must act in the best interests of the beneficiaries.

Transfer to beneficiaries. When the time comes, the trustee will transfer the property to the beneficiaries according to the terms of the trust. Depending on how the trust is set up, this could happen during the settlor’s lifetime or after their death.

Different types of trusts can be created for the transfer of land:

• Inter Vivos Trust (Living Trust): This type of trust is created during the settlor's lifetime. The settlor transfers land to the trust while they are alive. The trustee then manages the property for the benefit of the beneficiaries. Intervivos trusts can be revocable or irrevocable, depending on whether the settlor retains control over the trust and its assets.
• Testamentary Trust: This type of trust is created by a Will and only comes into effect upon the settlor's death. If the settlor’s Will specifies that certain property, such as land, is to be held in trust for beneficiaries after their death, a testamentary trust is established. This trust cannot be altered after the settlor’s death.

Trusts require careful planning

Trusts can be helpful for several reasons, such as avoiding probate, managing property for minor children, or controlling how property is passed on to beneficiaries. They're also a way to ensure the property is managed according to the settlor’s wishes. 

However, they involve legal complexities, tax consequences, and ongoing responsibilities for the trustee. Careful estate planning is required. For these reasons, it is important to consult a lawyer with experience in estate planning and trusts to ensure the trust is set up correctly and serves the settlor’s goals.

In the housing section of our site, you can find more information about topics like:

• Buying and selling land
• Land registration and title
• The advantages of forming a residential tenancy
• Moving in with someone

For information about residential tenancies, we suggest:

• The Residential Tenancies Program website
• Dalhousie Legal Aid’s Tenants’ Rights Guide