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In British Columbia, the new Wills, Estates and Succession Act ("WESA"), the Supreme Court Civil Rules, several other Acts and the common law govern what happens when a person passes away. [see www.bclaws.ca/civix/document/id/complete/ statreg/09013_01 for a online copy of the WESA legislation]
If the deceased died with a will, the person named in the will as the executor (or executrix if a woman), may apply to the Court for what is called a Grant of Probate of the will. The authority of the executor arises from the appointment in the deceased's will.
If the deceased died without a will, an interested person applies to the Court for what is called a Grant of Administration of the deceased's estate. The person appointed is called the administrator (or administratrix if a woman) Unlike the previous governing Act, WESA clearly sets out who is entitled to priority over another when making the application to become administrator. The spouse has priority and may also nominate someone else who is entitled to that same priority without the consent of the children.
Most of the documents required for both applications mentioned above utilize the standardized forms as set out as "Forms" under the BC Supreme Court Civil Rules
Executors and administrators are responsible for settling the deceased's debts and liabilities and dealing with the deceased's assets before distributing what is left to the beneficiaries, in accordance with the will, or to the intestate successors, as set out in the Wills, Estates and Succession Act, if there is no will. The term "personal representative" includes both an executor and administrator and for ease of explanation, that term will be used in this article to include both.
Since acting in either capacity takes time, energy and the assumption of responsibility, a person should give serious consideration as to whether or not to act in either capacity. A potential applicant may wish to consider seeking legal advice concerning the duties and obligations before taking on the position because a personal representative may become liable to beneficiaries or creditors of the estate if he is negligent in carrying out such duties and obligations.
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Some of the responsibilities which arise soon after death and prior to obtaining either Grant are set out below:
This is certainly not an exhaustive list of possible responsibilities.
After gathering as much information as possible, (see "What do I bring to my meeting with the lawyer?" for a detailed list) and before "intermeddling" with the estate - if applying for a Grant, the next step is to meet with a lawyer to discuss the duties and obligations as a personal representative and whether or not to proceed with an application. If the decision is made to proceed, the lawyer will outline the necessary steps to be taken.
If there is a will, the lawyer will usually apply to Vital Statistics for a Wills Search to determine whether the will in hand is the most recent will for which the will-maker filed a Wills Notice. After examining the most recent will, the lawyer will advise of any problems that appear on its face - such as uninitialed changes, it not being witnessed by two persons, it appearing that some clause is missing etc.
If a valid will cannot be found, the lawyer will explain the Rules of Intestate Succession under the Wills, Estates and Succession Act, www.bclaws.ca/civix/document/ id/complete/statreg/09013_01#part3 Division 1 of Part 3 s.20 -25 which sets out who shares in the deceased's estate and in what proportions.
The personal representative and the lawyer will decide what work the personal representative will take on and what action the lawyer is to take.
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A part of the application for a Grant, the applicant must mail or deliver by email, fax or electronic means, a copy of the will if any and Notice of Intended Application to certain persons at least 21 days before submitting the application materials for filing, with the Supreme Court Probate Registry.
The Notice required is Form P1 of the Supreme Court Civil Rules and must include the information requested in the Form. The Notice will go to the following persons
If there is a will, the Notice will go to:
If there is no will, the Notice will go to:
The lawyer can prepare the proper notices and assist the applicant in his or her search for all of the assets and liabilities of the deceased. The lawyer may write to banks, financial institutions, investment companies etc. where the deceased may have had an account; search in the Land Title offices to locate real property, investigate claims from creditors to determine their validity etc.
Once all information is gathered, the lawyer can then prepare the affidavits to be sworn by the applicant and file them in the appropriate Supreme Court Registry together with the appropriate initial Probate Filing Fees.Top of Page
PROBATE FILING FEES
Before the Registry will issue either Grant, Probate Filing Fees must be paid and they are based on the gross value of the deceased's assets which pass through the estate. Assets that do not pass through the estate and certain assets situated outside British Columbia are not subject to Probate Filing fees.
No fee is payable if the gross value of the estate is less than $25,000.
If the gross value of the estate is over $25,000 - the fee payable is $200, plus $6 for each $1,000 or part of $1,000 of estate value in excess of $25,000, up to $50,000, plus $14 for each $1,000 or part of $1,000 of estate value in excess of $50,000.
For example, on an estate valued at $500,000, the probate Filing Fees would be $6,650 as follows:
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After obtaining a Grant, the personal representative must deal with a number of matters.
The personal representative usually arranges for the transmission of the estate assets into his name as executor or administrator of the estate. As such, he may convert the assets (which have not been given away pursuant to the terms of a will as specific bequests) into cash if he deems it appropriate. If assets are sold, any money received from the sale of estate assets should be invested in the name of the estate. If any of those funds are invested pending distribution, the executor must ensure that they are invested in investments pursuant to the terms of the will, if any, or authorized by law for trustees pursuant to the Trustee Act.
The personal representative must file all of the appropriate income tax returns for the deceased and his or her estate. Since a personal representative may become personally liable for outstanding taxes, interest and penalties if he or she has not paid them prior to distributing the estate to the beneficiaries, it is strongly recommended that the personal representative seek the advice of a professional. The professional should either be a lawyer or accountant who specializes in this area because of the many technical rules, procedures and reporting requirements which may have an impact on the estate. A personal representative may be well advised to seek Tax Clearance Certificates from the Canada Revenue Agency before making a final distribution of the estate
The personal representative must also determine the validity of the deceased's debts and liabilities and pay them as appropriate. All creditors must be paid before the personal representative is in a position to distribute the estate to the beneficiaries. To avoid personal liability for unpaid liabilities, it may be advisable for a personal representative to publish a Notice to Creditors in the prescribed form.
It is difficult to predict with any accuracy when a personal representative will be in a position to make a final distribution of an estate and it is the most frequently asked question of the personal representative.
If there is a will, the spouse or child of the deceased may, within 180 days from the date that the Grant is issued in British Columbia, bring on an action, pursuant to Part 4 - Division 6 s.61 of the Wills, Estates and Succession Act, to vary the deceased's will on the basis that the deceased did not make adequate provision for the proper maintenance and support of the deceased's spouse or children. The Court may order whatever provision that the Court thinks is "adequate, just and equitable in the circumstances" from the deceased's estate for the spouse or children.
If there is no will, s. 155(1) of the Wills, Estates and Succession Act provides that the personal representative must not distribute the estate in the 210 days following the issuance of the Grant except with the consent of all beneficiaries and intestate successors entitled to the estate or by order of the court.
In both instances, the distribution may be delayed by difficulties in locating beneficiaries, obtaining Tax Clearance Certificates, dealing with estate litigation and having the beneficiaries approve the personal representatives's accounts and administration of the estate. The lawyer will be able to advise the representative when it is appropriate to distribute the estate.Top of Section --- Top of Page
See also BC Government Ministry of Justice: About Wills and Estates: March 2014 news and updates
See also "What happens if you die without a will?" for the current rules on how the estate would be divided if there is no will.
More questions? Contact an experienced lawyer such as:
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This page last updated: 2014.05.13
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