When someone dies without a will in BC, you become the estate’s administrator by applying to the Supreme Court of British Columbia for a grant of administration. Section 130 of WESA sets the priority order for who may apply, starting with the deceased’s spouse, then their children, then other people entitled to inherit under the intestacy rules.
When a loved one passes away without a will, their estate needs to be managed and eventually distributed. The person who takes on this responsibility is called the ‘Administrator’ of the estate. The process to become an administrator can be complex and is governed by British Columbia’s legislation, the Wills, Estates, and Succession Act. This guide simplifies the process and provides crucial insights to assist you.
Can You Apply to be the Administrator of an Estate?
We frequently receive calls from friends and loved ones asking if they can apply to administer the estate of a deceased friend or family member. The answer is usually ‘yes’, but the success of their application will depend on whether any person with greater priority under the legislation also applies to be appointed the ‘Administrator’ of the deceased’s estate. Even if no one else applies, the client may want to consider who the ultimate beneficiaries of the estate will be, what liability or risk is associated with acting as the Administrator, and other factors. In some cases, a well-intentioned family member or friend may decide not to apply after receiving legal advice about being appointed the Administrator of the estate.
Understanding the Administrator’s Role
Before diving into the application process, it’s essential to understand the duties and responsibilities of an estate administrator. This role is fiduciary, meaning an administrator must always prioritize the estate’s best interests and its beneficiaries. They are responsible for settling the estate’s debts and taxes, and managing any legal issues, like ongoing divorce proceedings or personal injury cases. If there’s a conflict between beneficiaries, the administrator must maintain neutrality.
The Hierarchy of Applicants
With respect to who may apply to be appointed Administrator, the Wills, Estates and Succession Act, SBC 2009, c 13 (the “Act”) sets out the relevant law. Section 130 of the Act establishes the priority among applicants, as follows:
(a) the spouse of the deceased person or a person nominated by the spouse;
(b) a child of the deceased person having the consent of a majority of the children of the deceased person;
(c) 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;
(d) a child of the deceased person not having the consent of a majority of the deceased person’s children;
(e) 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;
(e.1) a person, other than the spouse or child of the deceased person, nominated by an intestate successor of the deceased person if that person has the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who nominated the person to apply for a grant of administration;
(f) an intestate successor other than the spouse or child of the deceased person, not 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;
(g) 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.
References above to the ‘intestate successor(s)’ of an estate are determined according to the provisions of Part 3 of the Act. According to sections 20 to 25 in Part 3, an intestate estate (where there is no will) generally devolves as follows: to a spouse (where there are no descendants), to a spouse and descendants (where the deceased is survived by a spouse and descendants), to descendants only (where no spouse is living), to the deceased’s parents, to the descendants of parents, to grandparents or descendants of grandparents, to great-grandparents, and to descendants of great-grandparents. If the deceased had no living relatives within four degrees of kinship (s. 23(3) of the Act), then the estate escheats to the crown, which means the government inherits the deceased’s estate (s. 23(2)(f) of the Act).
Section 132 of the Act sets out that the court may appoint “any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.” The Supreme Court has stated that evidence of a competing personal interest or animus toward a beneficiary could potentially amount to special circumstances, as might evidence that the listed person is unable, unwilling or reasonably unlikely to put the estate’s best interests first (Woodward v Weinstein, 2020 BCSC 1667, at paras. 91-92).
In a recent case (Raye v Phillip Estate, 2021 BCSC 387), the court summarized some of the key principles governing the appointment of an Administrator:
[27] In exercising its discretion to appoint an administrator, the court must consider the best interests of the estate and all persons interested in the estate. The court should appoint an administrator who is likely best able to convert the estate to the advantage of those who are interested in it: Flores v. Mendez, 2014 BCSC 951 at paras. 35-41. The support of the majority of beneficiaries is a significant factor in determining an appropriate administrator: Godby Estate (Re), 2015 BCSC 1809 at para. 47. An administrator must act with “detachment and even handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15. An administrator should play a neutral role and not pick sides between beneficiaries and should be indifferent as to how the estate is to be divided: Kolic Estate (Re), 2016 BCSC 1312 at paras. 25-26. An actual or perceived conflict of interest may cause a court to appoint a new executor or administrator: Ching Estate (Re), 2016 BCSC 1111 at para. 22.
How to Apply to be an Administrator of Estate in British Columbia
Here is a simplified step-by-step guide on applying to become the Administrator of an Estate in British Columbia:
Step 1: Determine Your Eligibility
Before you begin the application process, determine your eligibility according to the order of priority outlined in Section 130 of the Wills, Estates and Succession Act. Understand where you stand in terms of priority and whether anyone else with a higher priority might also be interested in applying.
Step 2: Assess the Estate
Evaluate the size and complexity of the estate. If the estate is insolvent (debts and expenses exceed assets), it may involve more risk than reward to act as an administrator.
Step 3: Consult with an Attorney
Legal advice can be invaluable in this process. Consult with a lawyer experienced in estate law to understand the responsibilities, potential risks, and legal obligations that come with being an administrator.
Step 4: Obtain Consent
Depending on your priority, you may need to get consent from other eligible parties. For instance, a child of the deceased must have the consent of the majority of the deceased’s children to apply.
Step 5: Prepare Your Application
Prepare your application to the court, including the required forms and documents. These may vary depending on the specific circumstances of the estate. An attorney can assist you with this.
Step 6: File Your Application
Submit your application to the probate registry of the Supreme Court of British Columbia. You may need to pay a filing fee.
Step 7: Attend the Court Hearing
If a court hearing is scheduled, attend and present your case on why you should be appointed as the administrator.
Step 8: Administer the Estate
If your application is approved, you will receive a Grant of Administration from the court. You can then begin the process of administering the estate, which includes paying off debts and taxes, dealing with any legal issues, and distributing the remaining assets to the beneficiaries.
Important Considerations For Grant Of Administration
If another person also seeks to apply, the individual should consider whether that person ranks higher in priority or may be able to point to ‘special circumstances’ that may convince the court to depart from the order of priority listed in section 130 of the Act in exercising its discretion to appoint an appropriate Administrator. In the vast majority of cases, there is either only one person that wishes to apply or the family is able to come to a decision about who should apply.
Even in the absence of a competition between applicants, it is important to obtain legal advice about the risks and liabilities inherent in being appointed an Administrator. Acting as an estate Administrator is a grand responsibility. The role is fiduciary in nature, which means an Administrator must always put the best interests of the beneficiaries first and maintain an even hand in all dealings with the beneficiaries. This can be difficult when the Administrator is also a beneficiary and where there is disharmony among beneficiaries, such as where siblings do not get along. An Administrator is also legally responsible for ensuring the estate’s debts and taxes are paid. If the estate’s assets are not sufficient to satisfy all debts and expenses, then the Administrator must follow the order of priority set out in section 170 of the Act when paying debts and expenses. Many siblings or friends may be unwilling to take on the administration of a loved one’s estate when it becomes apparent that the deceased died insolvent and the administration role promises more risk than reward. As an Administrator has full conduct of the estate, the Administrator must deal with any ongoing or new legal disputes or lawsuits, such as ongoing divorce proceedings or personal injury cases. Litigation matters can require a lot of work and effort to resolve and may cause a lot of stress. Many friends or siblings may be unwilling to take on the responsibility of resolving a divorce or other legal dispute that is not of their own making. These are only some of the Administrator’s responsibilities, though with proper advice and guidance from a legal professional these responsibilities can be adequately and are routinely carried out by Administrators.
While there are, of course, advantages associated with being appointed an Administrator (satisfying a feeling of moral duty, for one), it is important to obtain advice about both the positive and negative aspects of being an Administrator before deciding whether to apply.
If you have questions about applying to be appointed the Administrator of an estate, contact Veronica Manski, Probate and Estate Administration Practice Leader to arrange a consultation.
Frequently Asked Questions
Who has priority to administer an estate without a will in BC?
Section 130 of WESA sets the order. The deceased’s spouse, or someone the spouse nominates, ranks first, followed by a child who has the consent of a majority of the children, then other intestate successors with majority consent, and finally anyone else the court considers appropriate, including the Public Guardian and Trustee. A person with higher priority can displace a lower-ranked applicant.
How do you apply to become an administrator in BC?
You file an application for a grant of administration with the Supreme Court of British Columbia, give notice to the other people entitled to the estate, and provide documents about the deceased, the assets, and your priority to act. Once the court issues the grant, you have legal authority to gather the assets, pay debts and taxes, and distribute what is left under the intestacy rules.
How is an intestate estate divided in BC?
Sections 20 to 25 of WESA set a fixed order. A spouse with no descendants takes everything; a spouse and descendants share the estate after the spouse’s preferential share; with no spouse, the estate passes to descendants, then to parents, then to the parents’ descendants, and outward to more distant relatives. If no relative within four degrees of kinship survives, the estate passes to the government.
Does an administrator have to post security or a bond?
Often, yes. Because an administrator is not chosen by a will, the court may require security, sometimes called an administration bond, to protect the beneficiaries and creditors, particularly where minors or non-consenting heirs are involved. The court can reduce or waive this in some circumstances, but you should expect the requirement to come up in the application.
What are an administrator’s legal duties?
An administrator holds a fiduciary role, meaning they must act in the best interests of the estate and its beneficiaries, not their own. That includes identifying and protecting the assets, paying valid debts and taxes before distributing anything, keeping proper accounts, and staying neutral in disputes between beneficiaries. Getting the order of payments wrong can leave an administrator personally liable.