Making sure there really is no will
Before anyone applies to administer, the family should be confident there is no will. Look through the person’s papers and any safety deposit box, ask the lawyer or notary they used, and order a search of the Vital Statistics wills registry, which records where a will was deposited if the person filed a wills notice. The search certificate is part of every application to the court anyway. The Vancouver, Burnaby and Surrey Service BC counters do not handle these requests, so apply by post or at another Service BC location. A will found after a grant of administration has issued can upset everything that has been done, so the search is worth doing first.
Whether a grant is needed at all
A grant of administration is the court’s appointment of an administrator. Without one, nobody has clear authority to deal with the estate, and no transfer of the deceased’s land can be registered at the land title office. Banks and other institutions each apply their own policies about what they need; some will release modest amounts without a grant, others will not. Assets with a named beneficiary, such as an RRSP, a TFSA or a life insurance policy, are paid to the beneficiary and are not part of the estate. If the estate is only a bank account and a car, ask the institutions what they require before deciding to apply.
Who is entitled to apply
WESA sets an order of priority among people who can be appointed when there is no will. In outline:
- the spouse, or a person the spouse nominates;
- one of the deceased’s children, if most of the children agree;
- someone a child puts forward, again with most of the children agreeing;
- a child who lacks that support;
- another relative entitled to share in the estate, with the consent of those holding a majority of the interests in it (or a person that relative nominates, with the same consent);
- another relative entitled to share, without that consent;
- anyone else the court considers appropriate, which can include the Public Guardian and Trustee, with its consent.
The order is a starting point, not a guarantee. The court may appoint anyone it considers appropriate where there are special circumstances, and can pass over a person who would otherwise have priority if they should not be appointed. More than one person can be appointed together.
Reaching agreement in the family
Much of the groundwork can be laid before anything is filed. If the children agree that one of them should act, the others sign written consents; a spouse who does not want to act can nominate someone else. Where the family cannot agree, the person with priority can still apply, but a disagreement at this stage can resurface later as a dispute over the administrator’s decisions. A short meeting with a lawyer at the start, to set out who has priority and what each person can expect from the estate, can head that off.
If no one in the family is willing or able to act, the Public Guardian and Trustee may administer the estate, though it can decline when the cost of administering would be more than the estate is worth.
Who must be told before filing
Three weeks or more before the court filing, the would-be administrator delivers Form P1, the notice of proposed application. On an intestacy it goes to:
- every person entitled to share in the estate under the intestacy rules, including relatives who would share only if the estate were larger than the spouse’s preferential share;
- every creditor whose claim is more than $10,000; and
- where one of them is under 19 or is an adult without capacity, the Public Guardian and Trustee as well.
Anyone who receives the notice can oppose the application. The 21 days can be shortened only by court order.
What is filed
The application goes to a Supreme Court registry and includes the submission for the grant, an affidavit of the applicant in the form for administration without a will (Form P5), an affidavit of the deceased’s assets and liabilities, two copies of the wills search certificate, and an affidavit confirming that the notices were delivered. Where a minor or an incapable person has an interest, the applicant may also have to provide security, and asks the court to fix it. The probate fee, based on the value of the estate, is paid before the grant is issued.
Any Supreme Court registry can be used. Marpole’s nearest is the Smithe Street registry in downtown Vancouver, roughly 9 km away by car. The courthouse across the river in Richmond, on Elmbridge Way, is a Provincial Court and does not take estate applications.
A will with no executor, or only part of the estate covered
Administration is not only for estates with no will. Where there is a will but it names no executor, or the executor has died, renounced or will not act, someone applies for a grant of administration with the will annexed, and the estate is then distributed under the will. Priority goes first to a beneficiary who has the consent of the beneficiaries holding a majority of the interests in the estate, or to someone such a beneficiary nominates with the same consent. And where a will gives away only part of the estate, the grant of probate or administration covers the remainder as well, which passes under the intestacy rules.
How long the steps take
| Step | Time |
|---|
| Wills search from Vital Statistics | Results print within 20 business days, plus mailing (courier is faster) |
| Consents and nominations from the family | As long as agreement takes |
| Notice (Form P1) to heirs, large creditors and, if needed, the Public Guardian and Trustee | At least 21 days before filing |
| Registry processing after filing | Varies; check current times with the registry |
| Notice to creditors in the Gazette | At least 30 days |
| No distribution without consent or order | 210 days from the grant |
After the grant
The administrator has the same authority over the estate that the deceased had, and must use it to administer and distribute the estate and to account for it. In practice that means gathering the assets, paying debts and funeral costs, filing the deceased’s tax returns, and keeping records of every transaction. Advertising for creditors in the Gazette, then waiting out the period stated, protects the administrator against claims that are not presented.
Distribution follows the shares in Part 3 of WESA, which turn on whether there is a spouse and children, and on whether the children are all children of the surviving spouse; our article on BC inheritance laws sets them out. The heirs wait at least 210 days from the grant for their shares, unless all of them sign consents or a judge allows earlier payment. A share due to someone under 19 goes to the Public Guardian and Trustee to hold, unless the court has named a trustee for it. When the work is done, the administrator obtains the family’s written approval of the accounts or has them passed by the court.
For the steps in more detail, see our pages on probate and estate administration and grants of probate and administration, and our step-by-step article, Died Without a Will: Applying to Administer a BC Estate.
When the family is in conflict
If relatives cannot agree on who should administer, or one of them has already taken control of the deceased’s property, the court can decide who is appointed, and while a dispute over the grant is pending it can appoint an interim administrator who may protect the estate but not distribute it. A person who believes there is a will that the family is ignoring, or that a will found is invalid, can contest it; see our articles on how to challenge a will, on a will made by a person with dementia, and on whether a suicide note can be a valid will. Disputes over how an estate is shared can also involve family expectations that the law does not follow; see Cultural Tradition Favouring Sons Rejected by BC Courts.
Where the person who died had lost capacity before death and someone was acting for them, see our article on costs in committeeship proceedings.
Who you will work with
Administration applications are prepared under Veronica Manski, who leads our probate and administration work and practises only in estates and trusts. If the appointment is contested, or the heirs fall out, Candace Cho, KC and her estate litigation colleagues take over; the firm dates from 2012, when she and Judith A. Janzen joined forces. The litigators include Valerie LeBlanc, Jackson Todd, Kevin Campbell, Jesse Patrao, Louisa Ledesma, TJ Garcha, Julia Pinnock and Katya Richardson. To avoid leaving your own family in this position, Sandy Minh Abley and our estate planning group prepare wills. The team page has every profile; for separation questions, see our Marpole family lawyers.
Common questions
My father died without a will. I am one of four children. Can I apply?
Yes. Where no spouse is applying or nominating someone, a child who has the consent of a majority of the deceased’s children comes first. Collect your siblings’ written consents before you apply.
Do we have to notify Dad’s credit card company?
The notice of the application goes to creditors owed more than $10,000. Smaller creditors are dealt with in the administration itself.
Can I file the application in Richmond?
No. Richmond’s courthouse is a Provincial Court. Any Supreme Court registry will accept it; from Marpole the closest is downtown, at Smithe Street.
How long before the family receives anything?
Seven months or more from the grant (the 210-day rule), unless every heir consents or the court permits earlier payment. The grant itself comes after the 21-day notice period and the registry’s processing time.
What does a first meeting cost?
Nothing for 30 minutes on an estate dispute. Administration work is quoted when you phone (604) 900-2538.
