Probate and Estate Administration

Law AreaProbate and Estates

LawyerCourtney AuBuchon

Time Frame3 months to years

A roadmap & guide to probate & estate administration in BC

Welcome to our webpage dedicated to probate and estate administration in British Columbia.

Estate administration is a crucial process that involves the careful management of a deceased person’s assets. This includes gathering all the assets of the estate, settling any liabilities, and distributing the remaining assets to the beneficiaries.

The following is general overview and guide to the BC estate administration process. It is not legal advice and all or part may not apply to your circumstances.

Types of Estate Administration

Probate and estate administration can take the following forms:

Grant of ProbateWhen an executor is appointed in a will
Administration where there is no willAn administrator is appointed and must follow the rules of intestacy as set out in the Wills, Estate and Succession Act
Administrator where there is a will but no executorSimilar to a Grant of Probate but applicant must show why they are the best person to be the administrator of the estate
Resealing a Grant of Probate from another placeWhen a Grant of Probate or Administration has been obtained in another province or country and there are assets in British Columbia that require an estate grant

The type of grant will determine what forms must be filed with the court and what information must be provided.

If the estate assets have a combined value of less than $25,000 a grant of probate is often not required. There may, however, be some institutions that will not release assets until a grant is obtained. If you are attempting to administer an estate with less than $25,000 you should first contact each institution that holds assets belonging to the estate to discuss.

Probate will also be required if a land transfer is required.

Gathering Information

Will Search

The first step in estate administration is the appointment of an executor if the deceased person had a will or an administrator if there is no will (intestate). The executor or administrator is responsible for managing the estate’s affairs, including locating assets, paying debts, and distributing assets to beneficiaries. The deceased person may have nominated an executor in their will, or the court may appoint an administrator if no will exists.

To apply for a grant of probate in British Columbia (BC), an executor needs to locate the following information and documents:

Perform a wills searchIn British Columbia, you must search for wills and estate records through the BC Vital Statistics Agency. The information required includes: the full legal name of the deceased person (the testator) and any other names they may have used, place of birth, date of birth, place of death, and date of death.
Original WillThe original copy of the deceased’s will is required.
Death CertificateA certified copy of the death certificate of the deceased is needed.
List of Assets and LiabilitiesThe executor or administrator must compile an inventory of the deceased person's assets, including bank accounts, real estate, investments, personal property, and any other valuable items. This inventory is crucial for the distribution of assets and settling debts.
Names and Addresses of the BeneficiariesThe full names and current addresses of all the beneficiaries named in the will.

Once all the necessary information and documents are gathered, the executor can file the probate application in a probate registry of the Supreme Court of BC. There is a court filing fee of $200. After the application is filed, the court may schedule a hearing to consider the application. If the court is satisfied with the evidence, it will issue a Grant of Probate or Administration.

In British Columbia, if the deceased person had a will, the executor typically applies for probate. Probate is a legal process in which the court confirms the validity of the will and grants authority to the executor to administer the estate. Probate involves filing the necessary documents and paying a fee based on the estate’s value.

Giving Notice

Form P1

In British Columbia, the second step of the probate or administration process is for an executor to send notices, including:

Notice of Proposed Application in Relation to Estate (Form P1)This notice must be sent to the people set out in the Supreme Court Civil Rules, including all executors and beneficiaries named in the will, all intestate successors (people who will inherit if there is no valid will).
Notice to Public Guardian and TrusteeIf a minor or mentally incapable person is a beneficiary, a Form P1 notice must also be sent to the Public Guardian and Trustee.
Notice to Old Age Security (OAS)/Canada Pension Plan (CPP)/Guaranteed Income Supplement (GIS)If the deceased was receiving these benefits, the executor must notify these agencies of the death.

Please note that this is not an exhaustive list and the specific notices required may vary depending on the circumstances of the estate.

Preparing the Forms

The executor or administrator must prepare the correct forms to be filed with the BC Supreme Court Probate Registry. These probate forms must be signed in front of a lawyer notary or commissioner for taking affidavits. When signing these documents the executor or administrator is swearing that the truth of the contents of the probate documents is true.

Submission (Form P2)

The submission is the originating document for the court file for the estate and is in Form P2. The submission form is divided into four parts:

Part 1: Information about the Deceased.
Part 2: Contact Information for the person applying for the executor or administrator.
Part 3: Documents Filed with this submission for estate grant.The applicant must select the correct options for what documents they are filing.
Part 4: Schedule.This includes information about potential executors, beneficiaries, and family of the Deceased person.

The Form P2 Submission must be signed by the applicant or the lawyer for the applicant.

Affidavit of Applicant (Form P3, P4 or P5)

The applicant must complete the correct form of affidavit and sign it before a lawyer or notary. The Affidavit of Applicant requires the executor or administrator to confirm that they have read the Submission and it is correct to the best of their knowledge.

Affidavit of Delivery of Notice (Form P9)

The executor or administrator must provide an sworn affidavit in Form P9 describing how the Form P1 Notice was provided to each person who is entitled to notice. See Giving Notice section above.

Affidavit of Assets (Form P10)

The executor or administrator must provide an sworn affidavit describing the assest of the estate, with their values in Form P10.

Filing with the Court

Filing

The forms that have been prepared must be filed with the BC Supreme Court.

Processing

The court will process the documents. Review times vary depending on staff availability.

Invoice for probate fees

Once the forms are processed the court will provide an invoice for probate fees. Once this is paid the Grant of Probate or Administration will be provided. There is no probate fee for the first $25,000 of the estate. The fee is 0.6% for amounts between $25,000 and $50,000 and 1.4% for amounts over $50,000. Not all assets are subject to probate fees, such as assets passing directly to beneficiaries through joint tenancy or life insurance policies with named beneficiaries.

Administering the Estate

Once the Grant of Probate or Administration is obtained the applicant can then begin administering the estate.

TaxesThe executor must prepare tax returns for the last year of life and for the estate. Once all tax returns have been filed the executor should apply for a Clearance Certificate which confirms that all the taxes owed by the deceased or the estate have been paid/
Sell or Transfer home and landThe property will first be transferred to your name as the executor or administrator of the estate. Once in your name you can transfer it to a beneficiary or a purchaser.
Sell or distribute possessionsAn executor will determine how to determine the personal possessions in a way that complies with the terms of the will. The executor will sell any items that are not gifted to beneficiaries.
Advertise for creditorsTo protect themselves from being personally liable for any unknown claims, the executor or administrator can publish a notice in the BC Gazette requesting creditors and other claimants to send their claims before a specified deadline. This is called advertising for creditors and claimants. See S.154 of WESA.

Estate Accounting and Distribution

Form P40

After settling all debts and taxes, the remaining assets are distributed to the beneficiaries according to the terms of the will or, if there is no will, according to the laws of intestacy in British Columbia. The executor or administrator is responsible for ensuring that assets are distributed appropriately.

Reporting to beneficiariesThe executor must provide a record of estate transactions to beneficiaries
Passing accounts by consentIf the beneficiaries agree with the executor's accounting then a distribution may occur without further procoss
Passing accounts before the courtIf there are issues with the accounting provided, or one or more beneficiaries are not able to consent to the accounting then the executor will have to pass his or her accounts before the court

The executor or administrator is required to provide a final accounting of the estate’s financial transactions and asset distributions to the beneficiaries and the court. This accounting helps ensure transparency in the estate administration process.

Once all debts have been settled, taxes paid, and assets distributed, the estate administration process is considered complete, and the estate can be formally closed.

The executor must keep meticulous financial records. The executor distributes the estate assets to beneficiaries according to the terms of the will (or intestacy laws if no will exists) after delivering a final accounting to the beneficiaries. The accounting can be approved by all beneficiaries or by the court if the beneficiaries are unable or unwilling to do so.

If the executor plans to seek compensation for administering the estate they should maintain detailed records of the time they spend doing so.

Assets that do not require probate

Not all assets that a person owned pass to that person’s estate. Some transfer to a beneficiary designated elsewhere or pass to a joint owner.

Life InsuranceLife insurance will often have a beneficiary and the insurer will pay the proceeds directly to this person.
TFSA, RRSP, RRIFRegistered investments will often have a designated beneficiary and the institution that holds these assets will pay directly to this person.
Joint Bank AccountsThe co-owner will become the sole owner of the account. In some cases these funds are held in trust for the estate.
Jointly held propertyLand, houses and other real property that is jointly owned as joint tenants will pass directly to the surviving owner by right of survivorship. Property held as tenants in common will not, so it is important to determine how the property is owned.

It is common for spouses to own most assets jointly and to make beneficiary designations so that when the first person dies probate is not required.

Supreme Court Civil Rules

Part 25 of the Supreme Court Civil Rules directs how the court process works. It establishes many of the rules and procedures for probate and estate administration applications in British Columbia.

The Wills Estates and Succession Act (WESA)

The WESA is the legislation that governs wills and estates in British Columbia.

Throughout the entire process, the executor has a fiduciary duty to act in the best interests of the estate and its beneficiaries, and they must adhere to the laws and regulations governing estate administration in their jurisdiction. Executors often work closely with legal and financial professionals to ensure that they fulfill their duties correctly and efficiently.

The process of administering an estate often takes longer than people expect. It is common for the process to take a year or more, even when the estate is relatively simple.

In British Columbia, as in many other jurisdictions, there isn’t a strict legal requirement known as the “executor’s year.” However, the concept of the executor’s year is often used as a guideline or general expectation for the timeframe within which an executor should aim to complete the tasks associated with estate administration.

The general principle is that an executor should work diligently and complete the administration of the estate as promptly as possible, typically within a year from the date of the deceased person’s death. This includes tasks such as gathering assets, paying debts, filing taxes, and distributing assets to beneficiaries.

Estate administration in British Columbia can be a complex and time-consuming process, particularly if the estate is large or if there are disputes among beneficiaries. It is advisable to seek the assistance of legal and financial professionals to navigate the legal requirements and ensure that the estate is administered according to the law.