Before you agree to act
Being named in a will does not oblige you to act. A named executor can renounce, and if they do, the administration passes as if they had never been appointed. The point to watch is timing: an executor who renounces before getting involved in the estate is not liable for it, but one who has started handling assets (paying bills from the deceased’s account, selling property, distributing belongings) is in a different position and may not be able to step away cleanly. Decide before you do anything more than arrange the funeral and secure the home.
If you are named and simply do nothing, anyone with an interest in the estate can use the court rules to make you either accept or renounce, or explain why someone else should administer instead.
Two things help with the decision. First, executors in BC are entitled to be paid. Where the will is silent on payment, the Trustee Act caps remuneration at 5% of everything that passes through the executor’s hands, counting both capital and income. An estate that stays in administration for years can also attract a yearly fee of no more than 0.4% of the assets’ average market value, but only if the court is asked for it. Within those ceilings, the beneficiaries may agree an amount, and if they do not, the court sets it when it passes the accounts. Second, you can hire a lawyer to do the legal work, paid from the estate, and keep the decisions for yourself.
What you can do before the grant
The will gives a named executor authority from the date of death, and the estate vests in the executor on taking up the office. Financial institutions and the land title registry, however, generally want to see a grant before they move anything. Until there is a grant of probate, an executor can arrange the funeral, find the original will, secure the home and its contents, tell the insurer, redirect mail and collect papers. Selling assets or paying beneficiaries waits for the grant.
If the deceased was a landlord
Older houses with a basement or laneway suite, and owners who rented out a condo, leave the executor with a tenancy to run. The death does not end it. Under the Residential Tenancy Act, “landlord” includes the owner’s personal representatives, so the executor steps into the landlord’s shoes: rent is paid to the estate, repairs remain the landlord’s responsibility, and the tenant keeps every protection the Act gives. A sale of the property does not by itself end the tenancy either. Ending it to sell with vacant possession, or so that a beneficiary can move in, has to follow the Act’s notice rules, which change from time to time and should be checked when the time comes. Hold any security deposit for the tenant, record rent as estate income, and tell the insurer that the owner has died and the property is tenanted.
The application
Probate can be applied for in any Supreme Court registry; for a Mount Pleasant estate, the Vancouver registry at 800 Smithe Street is the obvious choice. The steps are set by Part 25 of the Supreme Court Civil Rules: each beneficiary, and anyone else the rules list, must receive a Form P1 notice and a copy of the will, and three weeks must pass before the court papers go in; a wills search from Vital Statistics; and a sworn statement of everything the deceased owned and owed. Probate fees are paid before the grant issues. Our probate and estate administration team prepares the papers; for the detail of grants of probate and administration, and for what the fee costs, see our Vancouver estate lawyers page and our article on inheritance tax in BC. Where the deceased lived outside BC but left assets here, the process differs; see non-domiciled estates.
Keeping the estate’s money separate
Once the grant issues, the executor becomes a fiduciary. WESA requires the executor to administer and distribute the estate and to account to the beneficiaries, to creditors and to others entitled to an accounting. That has practical consequences from the first day:
- Open an estate bank account and run everything through it. Never mix estate money with your own, even briefly.
- Keep a record of every amount in and out, with receipts, from the date of death.
- Value assets at the date of death and record what each one later sold for.
- Keep the beneficiaries informed. An executor who explains what is happening is less likely to face an application for accounts.
Debts and claims
An executor pays the deceased’s debts before anyone inherits. Two tools in WESA protect an executor who does this carefully.
The first is a notice to creditors. An executor may publish a notice in the BC Gazette asking creditors and other claimants to present their claims within a stated period, at least 30 days from publication. Once the period ends, the executor may pay out on the basis of the claims actually received; anyone who stayed silent cannot then hold the executor personally responsible.
The second applies to a claim the executor disputes. The executor can give the claimant written notice rejecting the claim and stating that the executor relies on the statutory limitation period. The claimant then has 180 days to start a court action, and if they do not, the claim is barred.
When you can distribute
WESA bars distribution for 210 days after the grant issues. That window is longer than the 180 days in which a spouse or child may sue to vary the will, so any such claim is known before money leaves the estate. Paying out sooner requires either a court order or written consent from all the beneficiaries and from every person entitled to seek variation. Even then, WESA allows distribution without some consents if the executor sets aside enough to cover gifts to beneficiaries who cannot be found and any variation claim, but an executor who relies on that rule is liable unless they can show they did it properly. A beneficiary’s share that is owed to a child under 19, with no trustee named in the will, is paid to the Public Guardian and Trustee.
Distributing too early, to the wrong person or in the wrong amounts can make an executor personally liable for the loss. When in doubt, wait.
Accounts and the end of the job
Executors and administrators must have their accounts passed by the court within two years of the grant, unless every beneficiary approves the accounts in writing, or the court directs otherwise. Where every beneficiary signs an approval of the accounts, together with a release, when they receive their final share, no court passing is needed. Where they will not, or where the fee is disputed, the court passes the accounts and fixes the executor’s remuneration. Our article on appeals explains what happens if a party disagrees with the outcome.
When you are unsure, ask the court
An executor facing a real question (whether a document is a valid codicil, how to read an unclear gift, whether to sell or keep a property) can apply to the court for directions without starting a lawsuit. An executor who acts on the court’s direction is treated as having done their duty on that point. And where an executor has acted honestly and reasonably but still made a mistake, the court has power to relieve them, wholly or partly, from personal liability.
If you are a beneficiary
If the executor is slow, will not share information or appears to be favouring themselves, you can ask for the accounts and, if necessary, apply to the court for an order that they be passed. The court can also remove an executor who should not continue, or pass over one who has not yet obtained a grant. Disputes over entitlement, for example competing claims to life insurance proceeds, questions about a will-maker’s capacity late in life or whether a will survived the death of a common-law partner, are handled by our estate litigation lawyers.
Timing matters here too. An executor has two years from the grant to have the accounts passed unless every beneficiary approves them in writing, so a beneficiary who will not sign an approval is entitled to have the court look at them. Before applying, ask in writing for a full statement of receipts, payments, the assets still held and the fee the executor proposes to take. A clear request, and a reasonable time to answer it, is a cheaper first step and makes any later application easier to justify.
Who you will work with
Probate and executor advice is led by Veronica Manski, whose practice is entirely in estates and trusts. When an executor and the beneficiaries end up in court, the file goes to the litigation group under Candace Cho, KC, who co-founded the firm with Judith A. Janzen in 2012. Her colleagues on those cases are Katya Richardson, Jesse Patrao, TJ Garcha, Louisa Ledesma, Julia Pinnock, Kevin Campbell, Valerie LeBlanc and Jackson Todd. For your own will, including how to choose an executor and set their fee, speak to Sandy Minh Abley and our estate planning group. Every lawyer’s profile is on the team page, and family law questions belong with our Mount Pleasant family lawyers.
Common questions
Can I refuse to be the executor?
Yes. Renounce in writing before you start handling the estate’s property, because an executor who has already acted may not be able to withdraw without the court.
How much does an executor get paid in BC?
Whatever the will says. If it says nothing, the ceiling is 5% of the estate’s gross value, with a possible yearly 0.4% fee for a long administration, agreed with the beneficiaries or set by the court.
When can I pay out the beneficiaries?
After the debts are dealt with and 210 days have passed since the grant. Earlier payment needs everyone’s consent or a court order.
What if a creditor turns up after I have distributed?
A notice to creditors published in the Gazette, followed by the waiting period, protects you personally against claims nobody presented.
What does a first meeting cost?
Half an hour on an estate dispute costs nothing. For executor and probate work, ask about terms when you phone (604) 900-2538.
