Put simply, probate is the process of proving the originality and validity of a Will. It is often a required step in the estate administration process when the deceased has assets in BC. It involves a court application whereby the court will review the Will and supporting materials to confirm that the Will satisfies all of the formal requirements at law in BC. In addition to submitting a court application, Probate fees must be remitted to the Provincial Government before a Grant of Probate will be issued by the Court.
Probate is a key step in the estate administration process. The appointed Executor in the Will has a duty to secure all of the Deceased’s assets, which may include bank accounts, investments accounts, real estate, personal property, etc.. Most financial institutions, investment brokerages and government agencies will not give effect to a transfer of property from the Deceased to the Executor until the Executor can provide them with a Grant of Probate.
The requirements of a valid will in BC are strict, and failure to meet those requirements may render a will invalid. In such a circumstance, obtaining a Grant of Probate could be more difficult.
A few important notes about Wills and Probate:
- A will may be contested on a number of grounds, including formal invalidity, undue influence, incapacity, or otherwise under the Wills, Estates, and Succession Act.
- Estates may be carried out without a Grant of Probate if all assets are either held jointly with another person or have designated beneficiaries. If you plan to set up your estate in this manner, we strongly recommend speaking to a lawyer first, as it may have significant consequences to your estate plan.
- If there is no Will, an interested person must usually apply to the court for Letters of Administration in order to be appointed as the official administrator of the deceased’s estate. Banks, Investment Brokerages and Government Agencies will generally require Letters of Administration before they will release the deceased’s assets.
Family members responsible to carry out the estate administration process have a difficult enough time facing the loss of a loved one. Let us help make the probate process as easy as possible. Please contact us for more information about probate in British Columbia
What is probate?
Probate or obtaining a Grant of Probate or Administration is a court process of proving the originality and validity of a Will before the Supreme Court of BC. A Grant of Probate is used to authorize a representative to act on behalf of and administer the estate.
How much are probate fees in BC
In BC, probate fees are based on a calculation equal to roughly 1.4% of the gross value of the estate that passes through the hands of the Executor. A filing fee of $200 is also payable for each court application.
Who can apply for probate?
The applicant must either be appointed through the Will or if there is no Will, the applicant will be the next of kin with majority consent of other beneficiaries or effected parties. If the appointed executor of the Will renounces, the alternate can apply or the next of kin with consent will need to apply.
Can I file for probate on my own?
Yes, you can obtain documents online and file them with the probate registry. You will need the affidavits witnessed by a commissioner, lawyer or notary public. Generally speaking, we will not give legal advice on these documents if they are not prepared by our office. The forms are tedious and confusing and the registry is meticulous about how they are completed. Rejections from the registry can result in a delay and further effort to obtain supporting material.
What are some of the initial steps for an executor when someone passes away?
We usually advise clients to take care of family first, arrange the funeral services and secure the assets, when necessary. We will then meet with the Executor to discuss the next steps in detail.
At what point should I be meeting with Bell Alliance?
We generally see clients once the funeral service has occurred and the Executor is ready to proceed with administering the estate. We require the death certificate in order to proceed.
How long does probate take?
It depends on the complexities of an estate, such as number of beneficiaries or interested parties, location of assets and the wait times at the registry. We generally see probate applications taking anywhere from 4 months to 12 months to process. The estate administration in total can take up to 2 years.
Who has a right to see a copy of the Will?
Beneficiaries named in the Will, all intestate successors (people who would have been entitled as beneficiaries if there was no will), executors named, and sometimes Public Guardian and Trustee, if minors or disabled beneficiaries are involved.
INITIAL STEPS Following a person’s death, the appointed Executor(s) must give immediate attention to the following initial tasks:
- Locate Will – The Executor will need to locate the original will of the Deceased. In most cases, the will can be found at the office of the Deceased’s lawyer, in a safety deposit box with the Deceased’s financial institution, or at the Deceased’s last home address. Once it’s found, the Executor must conduct a search with Vital Statistics Agency to confirm that the will is the last will of the Deceased.
- Dependents – If the Deceased has children under the age of majority, then the Executor must inform the Public Guardian and Trustee’s Office and ensure that the children’s immediate needs are provided for until a more permanent arrangement can be made.
- Notice – The Executor should contact family and friends, and consider preparing an obituary in a newspaper local to where the Deceased resides. If the Deceased receuved pension benefits, the Executor should notify the pension provider (whether the Federal Government or a private institution) to advise of the Deceased’s passing, to ensure no overpayments will become repayable.
- Residence – The Executor should take possession of the Deceased’s home and make sure to dispose of all perishable foods and items. The Executor should also provide for any pets of the Deceased until a more permanent home can be arranged. If the home is vacant, insurance should be obtained to secure the valuables in the home.
- Credit Cards, Phone Plans, Cable – The Executor should contact the Deceased’s financial institutions, phone, cable, and other service providers to cancel any related credit cards or subscriptions.
- Death Certificate – The Executor should obtain original death certificates from either the Funeral Home or Vital Statistics. We recommend purchasing 4 to 8 copies to ensure there are sufficient original copies for the administration process.
- Funeral/Body – The Executor is usually responsible for organizing the funeral and making sure that the Deceased’s body is cremated or buried in accordance with the Deceased’s wishes. The Executor should contact the funeral service to ascertain if a funeral has been prepaid, failing which the Executor should check with the Deceased’s bank to see if they will release funds from the Deceased’s account to pay for the funeral.
- Debts – The Executor should pay any outstanding debts of the Deceased, including phone bills, cable, credit cards and mortgage payments.
- CPP Death Benefits – The Executor should submit an application to Service Canada to determine eligibility for Canada Pension Plan Death Benefits or Survivor Benefits.
- Estate Bank Account – If there are funds being received in the mail payable to the Deceased, the Executor should consider setting up an estate bank account to facilitate the Executor’s accounting and control over estate funds.
Note that any out of pocket expenses paid by the Executor can be reimbursed with estate funds once the Executor is able to access the Deceased’s financial accounts. PROBATE The Wills Estates and Succession Act came into force on March 31, 2014. It is the Executor’s responsibility to secure all of the Deceased’s assets, which may include bank accounts, investment accounts, real estate, personal property and other related property. Most financial institutions and government agencies will not give effect to a transfer of property from the Deceased to the Executor until the Executor has obtained a grant of probate from the Supreme Court of British Columbia. To apply for a grant of probate, the Executor will need to:
- Provide notice of the proposed application to all beneficiaries, persons entitled on an intestacy or partial intestacy, and persons entitled to vary the Will (spouse and children). The Executor must wait a period of 21 days from the date of delivery of the Notice before filing an application for probate.
- Identify all assets in the Deceased’s estate and obtain valuations for each of them. Government-assessed probate fees will be calculated based on these valuations, and the Executor will be required to remit payment of probate fees to the Ministry of Finance.
- Prepare a submission package to the Supreme Court and swear affidavits as to the accuracy of the above information.
It is worth noting that the Supreme Court of British Columbia may take 2-4 months to process a probate application. CLOSING ACCOUNTS AND TRANSFERRING ASSETS INTO THE ESTATE Once a grant of probate has been received from the Supreme Court, the Executor will be authorized to close and liquidate the Deceased’s accounts and, if applicable, transmit real estate into the Executor’s name. If the Executor has not already done so, he or she will need to set up an estate bank account to hold and manage the incoming funds. For tax purposes, it is important for the Executor to keep detailed financial records of all estate accounts. FIRST DISTRIBUTION Once all of the Deceased’s assets are gathered and liquidated, the Executor can prepare to make a first distribution to the beneficiaries. Before doing so, the Executor should consider the following:
- Variation of Wills – In British Columbia, a spouse or child of the Deceased has a right to file a claim with the Supreme Court to vary the Deceased’s will if they feel that they have not been fairly provided for. An action must be brought within 180 days of the issue of probate. The Executor must hold off on distributing assets until 210 days following the issue of probate, unless there is written consent from all beneficiaries and intestate successors entitled to the estate, or a court order. If a claim has been made against the estate, the Executor should hold off on making distributions until the claim is resolved.
- Taxes – The Executor will be responsible for paying the Deceased’s taxes, including income tax (capital gains), and trust returns. Before making a distribution, the Executor should obtain an estimate of all taxes for the estate to help establish a sufficient holdback for same before making a distribution.
- Notice to Creditors – The Executor may wish to post a notice to creditors and other claimants in the local newspaper and B.C. Gazette to ensure that any claims against the estate are known prior to distribution. The Gazette will post the notice in 4 consecutive issues requiring the creditors to present their claims within 30 days of the date of the first publication. The Executor must wait 30 days prior to making any distributions. After the 30 days have lapsed, the Executor is no longer personally responsible for any claims that may arise.
TAXES AND FINAL DISTRIBUTION
The Executor may choose to retain an accountant to assist with filing the Deceased’s tax returns. Once all taxes are paid to Revenue Canada, and all other estate expenses are paid out in full, the Executor should file for a Clearance Certificate to wind up the estate. Once received, the Executor can distribute the balance of estate funds to the beneficiaries, close the estate bank account, then give themselves a pat on the back for a job well done.