On top of having to deal with grief and emotions when your loved one dies, you may find yourself having to deal with the legalities of their death including how to get probate.
Our estate lawyers in this guide will explain all things to do with probate and hopefully provide some guidance on how to get it.
Starting Probate: Did the deceased leave a will?
If the deceased has a will, and they named you as an executor in the will, then you can apply for a Grant of Probate in BC.
What if I am the Executor but Don’t Want to Act as One?
If the executor or alternate executor named in the will do not wish to apply for a grant of probate in BC, then the court may grant administration to one or more of the following persons in the following order of priority:
- A beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;
- a person nominated by a beneficiary if that person has the consent of the beneficiaries representing a majority in interest of the estate, including the beneficiary who nominated the person to apply for a grant of administration with will annexed;
- a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;
- any other person that court considers appropriate to appoint, including, without limitation, the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.
What if there was no will?
If someone died without a will, then usually the spouse of the deceased or an adult child of the deceased can apply for a grant of administration without will annexed as per the section 130 of the Wills, Estates and Succession Act as follows:
Priority among applicants – intestate estate
If a person dies without a will, the court may grant administration of the deceased person’s estate to one or more of the following persons in the following order of priority:
- the spouse of the deceased person or a person nominated by the spouse;
- a child of the deceased person having the consent of a majority of the children of the deceased person;
- a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;
- a child of the deceased person not having the consent of a majority of the deceased person’s children;
- an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;
- any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.
Next: Contact a Probate Lawyer or Wills and Estates Attorney
If you are named as an executor or would like to apply to be one, you should set up a consultation with a Wills and Estate lawyer to start the probate process.
The legal fees can be paid out of the estate (not your pocket) and are fixed at $3000 + taxes and disbursements.
Contact our experienced Wills and Estate lawyers by calling 6041-974-9529 or get in touch.
What documents do I need to give to my lawyer to start the probate in BC process?
You must provide the original, signed copy of the will of the deceased to your lawyer.
The court requires the will in its original form to be filed with the court to begin the probate process.
Two copies of the Results of Search for Wills Notice from Vital Statistics Agency are also required but your lawyer can obtain them for you.
Step 3: The Probate Process in BC
Step 1: Sending out the P1 Notice of Proposed Application in Relation to Estate.
This probate in BC process usually starts with sending out the P1 Notice of Proposed Application in Relation to Estate (the “P1 Notice”) to, but not limited to, the following people:
- If the deceased left a will, each person who is named in the will as executor or alternate executor.
- Each beneficiary under the will.
- The spouse and any children of the deceased.
- Each person who would have been an intestate successor if the deceased did not leave a will and the estate exceeded the preferential share of the spouse as described in section 21 (2) to (5) of that Act.
- If any of the people you need to notify is a mentally incapable adult, the Public Guardian and Trustee, as well as the adult’s nominee.
- If any of the people you need to notify is a minor (under the age of 19) then the minor’s guardian.
Once the P1 Notice is sent out, you need to wait for at least 21 days before applying to court for the grant of probate/administration.
Step 2: After 21 days, submit the following forms for the grant of probate/administration:
- a submission for estate grant, in court form P2 – This form provides details about your application for probate.
- an affidavit of the applicant, in court form P3 or P4 – This form identifies yourself and your duties as an executor or an administrator.
- an affidavit of delivery, in court form P9 – This form is required to confirm that the P1 Notice and a copy of the will (if there is a will) were delivered to all of the persons who are entitled to the notice.
- an affidavit of assets and liabilities, in court form P10 or P11 – This form sets out detailed estate assets and liabilities that pass through the will.
Your lawyer can prepare and provide all of the above documents for you. However, detailed information about the estate assets and liabilities must be provided to your lawyer to complete the affidavit of assets and liabilities. The assets that pass outside the will do not have to be included in this form, such as the joint bank accounts, real property held in joint tenancy, assets with a designated beneficiary.
Step 3: File your probate in BC documents with the Supreme Court Probate Registry
You can submit the documents noted under Step 2 above along with the original signed will and two copies of the wills search results to court. The filing fee to open your probate application is $200.
Once the above documents are filed with the court, the court usually calculates the probate fees based on the total gross value of the estate.
Step 4: Pay probate fees. How are the probate fees calculated?
For estates under $25,000 there is no probate fee at all. The probate fee is charged at a rate of 0.6% for the estate between $25,000 and $50,000. For estate over $50,000, the probate fee is charged at a rate of 1.4%. This information has been set out in the Probate Fee Act [SBC 1999] c.4 s.2.
The probate fees can be paid from the estate.
Step 5: Obtain grant of probate/administration issued by the court.
You can receive the grant of probate/administration soon after the probate fees are paid to court.
How do I distribute the estate of the deceased when there is no will?
If someone died without a will and you would like to know how the estate assets are distributed, please read our blog posting, My Loved One Died Without A Will in BC – What Now?
Your powers, duties and liabilities as an executor/administrator.
As an executor or administrator of the estate, you have the same authority over the estate in respect of which the personal representative is appointed as the deceased person would have if living, subject to
An executor or administrator of the estate must exercise authority to
- administer and distribute the estate;
- account to beneficiaries, creditors and others; and
- perform any other duties imposed on the personal representative by the will of the deceased person or by law.
You can be also liable to the extent of the assets belonging to the estate that come into your possession or control, for the wrongful acts and omissions or breaches of legal duty of the deceased person, subject to this or any other enactment of the contrary.
This is why it is very important to consult with a Wills and Estate lawyer to fully know your rights and obligations, and protect yourself from liabilities. Legal costs can often be paid out of the estate, not your pocket.
Can I distribute the estate assets as soon as the court issue a grant of probate in BC/administration?
For the estate of the deceased who died with a will, you cannot distribute the estate assets within the 210 days following the date of the issue of an estate grant except by court order or with the consent of the following:
- all beneficiaries who have an interest in the estate;
- All persons who may commence a proceeding under Division 6 [Variation of Wills] of Part 4 [Wills] in relation to the estate.
For the estate of the deceased who dies without a will, you may distribute the estate assets within the 210 days following the date of the issue of an estate grant with the consent of all intestate successors entitled to a share of the estate.
Contact YLaw to help you through the probate process so you can focus on other things. Our expert estate lawyers are here to help you though the entire process. Call us at 604-974-9529 or get in touch.
The legal fees can be paid out of the estate (not your pocket) and are fixed at $3000 + taxes and disbursements.
