Probate is a legal process through which a deceased person’s will is validated by the court, an executor is appointed, and the estate is administered and distributed according to the will. Many people dread probate and worry about probate fees. “How to avoid probate” is consistently a top internet search. The truth is that in some situations probate is absolutely necessary, and while the probate application process can be complicated, it’s nothing to be afraid of with the right guidance from a probate lawyer.
Onyx Law Group can help you navigate the probate process in BC from beginning to end. Our probate and estate administration lawyers provide professional advice and effective solutions to beneficiaries, executors, administrators, and trustees throughout the probate and estate administration process, including handling will disputes. To schedule a consultation, we welcome you to contact us today.
Today’s article is a comprehensive guide for successfully navigating probate in British Columbia, including a discussion of what probate is, how a probate lawyer can help, and a step-by-step checklist of the probate process.
What Is Probate in BC?
Probate is a legal process that starts with applying to the BC Probate Registry of the Supreme Court. When a person dies leaving a Last Will and Testament, the probate process achieves two important objectives:
- probate confirms that the original will is the valid, and
- probate confirms the legal authority of the executor named in the will to act on behalf of the deceased’s estate.
After probate is granted, the Supreme Court issues a Grant of Probate, which legally authorizes the executor to deal with the deceased person’s assets, including distributing assets to the beneficiaries named in the will, in accordance with the will’s terms.
When a person dies without a will, they are said to have “died intestate.” In that situation, estate assets must be distributed to the deceased’s heirs in accordance with BC intestacy laws. A probate application is often necessary to obtain a Grant of Administration, which appoints a person (such as the spouse or other family member of the deceased person) to act as the administrator of the estate. An administrator has the same legal authority and responsibilities as an executor.
Who Handles Probate?
The applicant for probate is either the executor named in the will or the person seeking to be appointed as the administrator. They must prepare a set of probate forms and sworn affidavits as required by BC law, and they must comply with any and all applicable notice requirements and other rules, in order to convince the Supreme Court that an estate grant should be issued.
When Is Probate Necessary?
Not all wills need to go through the probate process. It’s often discovered that a probate application is necessary when a person tries to deal with the deceased’s registered property, such as real property, vehicles, bank accounts, or other financial accounts.
Third parties (e.g. the Land Title Office, a financial institution, ICBC, the Canada Revenue Agency), have strict rules in place to ensure that a deceased person’s property is not transferred contrary to the law. A court-certified copy of the estate grant is recognized by these third parties and tells those third parties that the executor or administrator has the legal authority to act on behalf of the estate (to sell or transfer real property, transfer money and close bank accounts, etc.).
What Assets Are Not Subject to Probate in BC?
The type of assets owed by the deceased person and how they owned them at the time of their death are two of the main factors that determine whether probate is required. For example, if the deceased person jointly owned their home or bank account with another person at the time of their death, that jointly owned property does not form part of their estate. The surviving joint owner takes full ownership of the property, without the need for probate, and without paying probate taxes or property transfer tax in relation to that property.
Other assets that are not subject to probate in BC include assets held in trusts or insurance policies. For more on assets that are not subject to probate, please see this article we prepared, or contact an estate lawyer at Onyx Law Group for advice.
Steps to Probate a Will in British Columbia
The death of a family member or loved one can be a difficult and emotional time. The thought of navigating probate forms and court rules can feel overwhelming. This step-by-step guide is intended to provide an overview of the process, but you don’t have to go through the process alone. A probate lawyer at Onyx Law Group can help you with the probate application and estate administration process, making this difficult time less stressful.
1. Determine if Probate is Required
Probate may be needed even if the estate seems “simple.” The first step is to take an inventory of the deceased person’s assets and debts, and then consult financial institutions and other third parties to determine if they require probate to confirm legal authority to deal with the estate’s assets. It’s a good idea to get advice from an estate lawyer at this early stage to help determine if probate is required.
2. Gather Necessary Documents
A typical probate application will need several important documents. Relevant documentation typically includes the originally signed version of the will and codicils, if any (a formal wills notice search may be needed), the death certificate (the BC Vital Statistics Agency authorizes funeral homes to issue these), a detailed list of the deceased person’s assets (bank accounts, real estate, investments, etc.) including the fair market value as at the date of death, and a detailed list of the deceased person’s liabilities (outstanding debts, loans, taxes, etc.)
3. Notification of Beneficiaries
Formal notice of the proposed application for probate must be served on certain people before filing the estate grant application. Using the proper form, the estate representative must notify the beneficiaries named in the will’s terms and other interested parties (intestate successors, creditors, immediate family members such as the deceased’s spouse, even if they aren’t named in the will, etc.).
There is a 21-day waiting period that must be observed after the notices are delivered, which means the estate grant application cannot be submitted until at least 21 days after the notices have been sent.
4. Complete the Probate Forms
The next step is to prepare the probate forms and affidavits that must be sworn by the applicant and filed with the probate registry, along with other relevant documentation, such as the originally signed will. Necessary forms in a typical probate application include:
- Submission for estate grant (Form P2)
- Affidavit of applicant for grant of probate or grant of administration with will annexed (short form) (Form P3)
- Affidavit of assets and liabilities for domiciled estate grant (Form P10) listing all of the deceased’s assets and liabilities
- Affidavit of delivery (Form P9) confirming that all necessary parties received notice in accordance with Step 3.
5. Submit the Probate Application to the Supreme Court
After completing the application package, it must be filed with the BC Probate Registry, either in person or electronically. Court filing fees and probate fees (if payable) are due when the probate application is filed. Probate fees are assessed at a rate of 0.6% on the value of estate assets between $25,000 and $50,000 and 1.4% on the value of estate assets exceeding $50,000 (Probate Fee Act, [SBC 1999] CHAPTER 4, s. 2).
The Supreme Court reviews probate applications in the order in which they were filed. It takes 4-8 weeks for the court to process a typical probate application, but it will take longer if there are mistakes in the application, missing documents, or if other issues arise. Once the application has been approved, the court issues the estate grant. On average, the entire probate process might take between several months to a year.
Can You Avoid Probate in BC?
With proper planning, it may be possible to arrange affairs so that an estate can be processed without the need for a probate application. There are risks and considerations other than probate fees to be considered when deciding on the most efficient estate plan.
There are legal, practical, and tax implications of transferring assets to avoid probate that must be understand before making any decisions. If you are looking for advice on ways to avoid probate and minimize probate fees, we encourage you to reach out to an estate lawyer.
How Much Does an Estate Have to Be Worth to Go to Probate in BC?
The value of the estate is another factor that determines whether probate is required. There is an exemption in BC for smaller estates. If the value of the estate does not exceed $25,000, a probate application may not be required, but it depends on the type of assets the deceased person owned when they died. For example, if they owned a vehicle, bank account, or certain types of investments, a probate application may still be needed for a small estate.
Note that if the value of estate assets does not exceed $25,000 and probate is needed, the estate grant is issued without the estate having to pay probate fees or court fees.
What Happens After Probate Is Granted in British Columbia?
Once the estate grant (Grant of Probate of Grant of Administration) has been issued by the Supreme Court, the executor or administrator has the legal authority to begin administering the estate. Steps they must take include debt settlement (paying outstanding debts of the estate), selling or transferring ownership of the deceased’s assets, managing trusts, paying income taxes owed by the estate, keeping detailed records, and distributing assets to the beneficiaries named in the will.
Do I Need an Estate Lawyer for the Probate Process?
The probate process can be time-consuming and frustrating for a person without legal expertise. In addition to the complicated application process, additional difficulties may arise, such as disputes over the validity of the will or other legal action challenging the will, wills variation claims by the spouse or child of the deceased, unclaimed inheritances, and conflict between beneficiaries and executors.
By involving an experienced probate lawyer throughout the probate process, you can minimize delays, avoid potential legal complications, and ensure the estate is administered efficiently and correctly.
Can a Notary Probate a Will in BC?
In British Columbia, a notary can draft standard wills, but notaries do not have the authority to probate wills. Only properly qualified lawyers are authorized by BC law to provide that service.
Need a Probate Lawyer to Navigate the Probate Process in British Columbia?
Our team of estate and probate lawyers in British Columbia regularly assists clients with applications to obtain a Grant of Probate or a Grant of Administration from the British Columbia Supreme Court.
We can help ensure the smooth transfer of property and assets and the proper administration of estates from start to finish. Whether the situation is contentious or non-contentious, relatively simple or highly complex, a probate lawyer at Onyx Law Group can guide you through each stage of the estate administration process. Contact us today to arrange a consultation.
For more information or legal advice concerning probate law or an estate law matter, reach out to Veronica Manski, Probate and Estate Administration Practice Leader.
Frequently Asked Questions
How long does probate take in BC?
Most straightforward BC estates clear probate in about four to eight months. The Supreme Court probate registry takes several weeks to review an application once it is filed, and you cannot file until 21 days after notice goes out to beneficiaries. Add time for gathering asset values, and delays stack up fast if the will is unclear or a beneficiary raises a concern.
What happens if someone dies without a will in BC?
When there is no will, the estate is divided under Part 3 of the Wills, Estates and Succession Act (WESA), not by anyone’s choice. A spouse and children inherit first, in shares set by the statute. If there is no spouse or children, the estate moves outward to parents, siblings, and more distant relatives. Someone still has to apply to court, but they ask for a grant of administration rather than probate.
Do you have to wait before applying for probate in BC?
Yes. Before filing, the executor must send a formal notice (Form P1) to every beneficiary and to anyone who would inherit if the will were set aside. The court will not accept the application until at least 21 days have passed from the date that notice was delivered. The wait gives interested parties a window to raise concerns before the grant issues.
Can an executor be paid for administering an estate in BC?
An executor can claim a fee of up to 5% of the estate’s value under BC’s Trustee Act, plus a possible fee for managing assets held over a longer period. The will itself sometimes sets the amount. Beneficiaries can ask the court to review the fee if it looks too high for the work actually done.