Wills searches: the Kingsway Service BC office will not take them
No probate application is complete without a Vital Statistics certificate confirming whether the deceased ever filed a wills notice, the short record a will-maker can lodge to say where the will is kept. The Province states that its Service BC offices in Burnaby, Vancouver and Surrey do not accept wills notice searches or filings, so the counter at 5021 Kingsway is not an option.
That leaves three practical routes for a Burnaby executor:
- By mail to Vital Statistics in Victoria, with the application form and a photocopy of the death certificate. The fee is $20, plus $5 for each other name the deceased used. Results print within 20 business days, plus mailing time, or the next business day if you pay $33 more for courier delivery.
- In person at another Service BC counter. The nearest one listed is in Maple Ridge, at Unit 175, 22470 Dewdney Trunk Road.
- Through a lawyer or notary, who can apply through BC Registries.
The same limit applies to a will-maker who wants to file a wills notice: the Burnaby office will not accept it, but it can be filed online or by mail for $17.
What the executor has to do, and in what order
The will gives the executor authority, yet most banks and investment firms, and the land title office, want to see a grant before they act. The steps come from Part 25 of the Supreme Court Civil Rules:
- Order the wills search described above, and locate the original will.
- Deliver the notice of proposed application (Form P1) with a copy of the will to any other executor entitled to apply, to each beneficiary, and to everyone who would take a share on an intestacy. Where a minor is involved, the Public Guardian and Trustee must receive it as well.
- Wait at least 21 days after delivery before filing, unless the court orders an earlier date.
- Prepare the affidavit of assets and liabilities. WESA expects the executor to make a diligent search and inquiry for everything the deceased owned and owed first.
- Pay the probate fee. Estates worth $25,000 or less pay nothing. Beyond that, the Probate Fee Act charges $6 per $1,000 (or part) from $25,000 to $50,000 and $14 per $1,000 (or part) above $50,000. On an estate valued at $800,000 the fee comes to $10,650. The fee is worked out on what passes to the executor: land and tangible property located in BC, and, for someone ordinarily resident in BC at death, intangible assets such as bank accounts and investments wherever they are held. Property held in joint tenancy passes to the survivor and is left out.
Once the grant issues, the waiting continues. Under WESA section 155, the estate may not be distributed within 210 days of the grant without a court order or, where there is a will, the consent of every beneficiary with an interest and everyone entitled to bring a wills variation claim.
Our probate lawyer team, led by Veronica Manski, prepares the estate grant application, deals with the registry and advises executors on their duty to account. Probate isn’t always necessary, and where there is no will, the application is for a grant of administration instead. For more on the process, see our general overview of the steps, our guide to probate matters, and what happens after the estate grant has been issued.
Disputes over a will, a gift or an executor
Estate litigation lawyers act for beneficiaries, for family members who were left out, and for executors defending an estate. The claims differ in what they ask the court to do.
Varying the will
Section 60 of WESA lets the court vary a will that does not, in its opinion, “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children”, ordering whatever it considers “adequate, just and equitable in the circumstances.” Grown children are entitled to claim. So is a spouse, which for this purpose covers a married partner or a person who had lived with the will-maker in a marriage-like relationship lasting two years or more, as long as that status still held immediately before the death (section 2). Separation can end it. Timing is unforgiving. The action has to be started no later than 180 days after the grant is issued in BC, and the executor has to be served within a further 30 days, which the court can extend. See our articles on the wills variation claim, the limitation period, disinheritance of a spouse and the disinherited child.
Attacking the will itself
A will must be in writing, signed at its end by the will-maker in the presence of two witnesses present at the same time, and signed by those witnesses. It can also be challenged for lack of capacity or undue influence. Section 52 shifts the burden on undue influence. If the challenger proves that someone held a position in which “the potential for dependence or domination of the will-maker was present”, it falls to those upholding the will to show that the position was not abused. In the other direction, section 58 lets the court order that a document which falls short of the signing rules is fully effective, where it represents the deceased’s testamentary intentions. Read more on how to challenge a will, undue influence and lack of capacity and the validity of a will or trust.
Property that moved before death
Some disputes are about assets that never reached the will, such as a gift made while the parent was failing or money taken from their accounts. Whether the person who received it keeps it, or holds it for the estate, turns on evidence of what the parent intended. These claims may rely on inheritance theft or unjust enrichment principles.
An executor who is not doing the job
Under WESA section 158, a person with an interest in the estate may ask the court to remove an executor, or to pass over someone otherwise first in line for the job. Delay, a refusal to account and a conflict of interest are among the grounds raised. See when the court can remove an executor or trustee and how long an executor can withhold money from a beneficiary.
We aim to resolve a dispute through negotiation or mediation, and our estate lawyers take a case to trial when that is not possible. Depending on the dispute and how the litigation ends, some legal costs may be recoverable from the estate. Other claims carry their own limitation periods, which vary with the claim and its facts, so it pays to get advice before the grant issues.
Estates that include a strata unit
The 2021 census counted 42,540 condominiums among Burnaby’s 101,135 occupied private dwellings, about 42 per cent, and fewer than one Burnaby home in five was a single-detached house. The census does not say what estates hold, but with housing like that a strata lot can easily be the main asset in a Burnaby estate, and the Strata Property Act adds steps an executor should plan for.
Who holds the unit after the death
If the deceased owned it alone, or as a tenant in common, the unit passes to the executor, who holds it in trust for the people entitled to it (WESA section 162). If it was held in joint tenancy, it passes to the surviving owner, who can ask the Land Title and Survey Authority, online, to transmit the title into their name.
Get an Information Certificate early
The strata corporation must provide one within a week of a request from an owner or purchaser, or someone authorized by either. “Owner” under the Act includes a person registered on title in a representative capacity, which is how an executor appears once the title has been transmitted. The certificate sets out the monthly strata fees, any amount owing, special levies already approved and when they fall due, the contingency reserve fund balance, and bylaw amendments not yet filed. An approved levy for building repairs can change what the unit is worth to the beneficiaries, or what a buyer will pay for it.
Keep the fees paid
If strata fees or a special levy go unpaid, the strata corporation may register a lien against the unit. A transfer to a beneficiary or a buyer also cannot be registered at the land title office without a current Certificate of Payment from the strata corporation, which is valid for 60 days.
Renting the unit during the administration
Since 2022, a strata corporation cannot screen tenants or otherwise restrict the rental of a strata lot. A tenancy can still complicate a later sale, or a transfer to a beneficiary who wants to live in the unit, so take advice before signing a lease on behalf of the estate.
Buildings restricted to residents 55 and over
The Act still allows a strata corporation to pass a bylaw requiring residents to be at least 55. A younger beneficiary can inherit title to a unit in such a building but may not be able to live in it. The exceptions are narrow. They cover people who already lived in the unit when the bylaw was passed, live-in caregivers of a resident who needs care, and, under the Strata Property Regulation, the spouse and certain children of a resident who meets the age rule. Those family exceptions depend on that resident still living there, so they may not help once the owner has died.
