First steps for an executor
The province’s guidance lists the executor’s basic duties. In practice the first weeks look like this:
- Find the will and confirm it is the last one. Check the deceased’s papers, their lawyer or notary, and any safety deposit box, and order the wills notice search described below.
- Secure the assets. Take control of the home, vehicles and valuables, keep the home insured, redirect mail and cancel subscriptions and charge cards.
- List what the deceased owned and owed, with values, and gather the names and addresses of the immediate family and every beneficiary.
- Ask each bank and institution what it needs. Some will transfer assets without probate, under their own policies and limits; others, and the Land Title Office for most real estate, will require a grant.
- Deal with tax. Final tax returns are filed for the deceased and, where needed, for the estate; the Canada Revenue Agency publishes guidance for executors.
- Pay valid debts before distributing. Handing out the estate while proven debts are outstanding can leave the executor personally on the hook.
- Keep accounts of everything received and paid, to be approved by the beneficiaries or the court at the end.
Where nobody will take the job, the Public Guardian and Trustee can step in as administrator, but it may say no if administration would cost more than the estate is worth. Legal fees can be paid from the estate if the court or the beneficiaries approve them.
Where a Tsawwassen estate is filed
Delta has no courthouse of its own. The closest by road, Richmond Provincial Court, cannot hear estate cases, which WESA reserves for the Supreme Court. Supreme Court registries at the Vancouver Law Courts (800 Smithe Street) and the New Westminster Law Courts (651 Carnarvon Street) are each about 33 km by road from the Tsawwassen town centre. The province lets an applicant use any Supreme Court registry for a grant, and documents can be filed electronically.
Before applying, the executor orders a wills notice search from Vital Statistics, by mail or at a Service BC counter. There is no Service BC office in Delta, and the Vancouver, Burnaby and Surrey offices do not handle wills searches, so for a Tsawwassen executor mail is the practical route unless they travel to Maple Ridge or Chilliwack; allow up to 20 business days, or pay $33 more for courier service.
Under the probate rules (Supreme Court Civil Rules, Part 25) the family and other people with an interest get notice first; 21 days must pass; then the application goes in with the search certificate and a sworn list of what the deceased owned and owed. The fee is nil on the first $25,000, $6 per thousand to $50,000 and $14 per thousand after that, so a $1,190,000 estate pays $16,110. The personal representative must not distribute within 210 days of the grant without a court order or the consents WESA s.155 requires.
Our probate and estate administration practice, led by Veronica Manski, handles grants of probate and administration from the first notice to the final accounts. Beneficiaries waiting on an estate may find how long an inheritance takes useful, and how wills work in Canada covers the basics.
The family home in the estate
The home is often the largest asset, and how it was owned decides what happens next. If the deceased owned it alone, it passes to the executor or administrator, who holds it in trust for the beneficiaries (WESA s.162); the grant is normally needed before the title can be transferred or the home sold. If it was held with a spouse or someone else as joint tenants, it passes to the survivor outside the estate and is not counted for probate fees.
Either change is registered with the Land Title and Survey Authority. Applications are filed online by lawyers and notaries; the authority’s counter at Suite 500, 11 Eighth Street in New Westminster is open by appointment only. While the home sits empty, keep it insured and check the policy’s terms on vacancy, and keep paying property tax and utilities from estate funds.
How long it takes
Expect at least 21 days between sending the notice and filing, then the registry’s processing time, which can include requests for corrections. After the grant, the executor waits 210 days before distributing, unless the court allows it sooner or the beneficiaries and anyone who could bring a wills variation claim consent. Selling a home, filing final tax returns and getting a tax clearance can add months. Our article on how long probate takes in BC gives typical timelines.
When there is no will
If the deceased left no will, or the will names no executor who can act, someone applies for a grant of administration instead of probate. The Wills, Estates and Succession Act (WESA) then decides who inherits. A surviving spouse with no descendants takes everything. Where there are children or other descendants, the spouse first takes the household contents plus a preferential share ($300,000 if every descendant is also the spouse’s, otherwise $150,000), and whatever is left is divided equally between the spouse and the descendants. With no spouse, the estate goes to descendants, then parents, then siblings and their descendants, and further out from there. Our guide to dying without a will in BC explains the order in more detail, and applying to administer an estate covers who has priority to act.
Property or a will from outside BC
Tsawwassen is next to the US border, with Point Roberts, Washington, directly to the south, and some families hold property or accounts in Washington State or elsewhere outside the province. A BC grant deals with the estate’s BC assets; land in another country is administered under that country’s rules, which can mean a separate proceeding there and tax advice from someone qualified in that jurisdiction. A will made outside BC can still be accepted for probate here if it met the formal rules of the place it was made, the will-maker’s domicile or residence, their nationality, or BC (WESA s.80). If you own property in more than one country, plan your wills together so that one does not revoke the other by accident.
Disputes over a will or an estate
- Wills variation. A spouse or child who was not adequately provided for can ask the court to vary the will under WESA s.60. Filing is due within 180 days after the BC grant, with service on the executor in the following 30 days. See the wills variation limitation period and our pages on a disinherited spouse and a disinherited child.
- Whether the will is valid. Lack of capacity, undue influence and failure to follow the signing rules are the main grounds; the court can also give effect to an imperfect document that shows the deceased’s intentions (WESA s.58). Read about testamentary capacity and constructive trusts used to resolve unfairness.
- Stopping a grant. Someone entitled to notice of the probate application can file a notice of dispute (Form P29) before the grant issues. While it is in force no grant can be made, and it lapses after a year unless the court renews it.
- The executor. A beneficiary can apply to have an executor removed or passed over (WESA s.158) and can ask for a passing of accounts.
Candace Cho, KC heads our estate litigation group, and a dispute consultation begins with 30 minutes at no charge.
Planning ahead
A will, a power of attorney that continues if you lose capacity, and a representation agreement for health and personal care make up the basic plan. Whoever you appoint under a power of attorney must act honestly, in your best interests and within the document, and must keep your money separate from their own; choosing that person is as important as choosing an executor. Trusts can help with probate costs or a beneficiary who needs support; our article on putting a house in a trust explains the trade-offs. Sandy Minh Abley, called to the bar in 2005, leads our estate planning lawyers.
Our estate lawyers
Our two principals, Candace Cho, KC and Judith A. Janzen, joined forces in 2012. The estate team:
- Candace Cho, KC, who leads estate litigation as a principal of the firm
- Veronica Manski, probate and estate administration practice leader
- Sandy Minh Abley, wills and planning
- Litigators Jackson Todd, Valerie LeBlanc, Kevin Campbell, Katya Richardson, Louisa Ledesma, Jesse Patrao, TJ Garcha and Julia Pinnock
Everyone else is on the team page.
Common questions
Can probate be filed in Richmond?
No. Richmond’s courthouse is Provincial Court only. File at a Supreme Court registry (Vancouver and New Westminster are closest) or online.
Does every estate need probate?
No. Banks and other institutions may release assets without a grant under their own policies and limits, but many require one, especially where land is involved. Ask each institution what it needs before you apply.
What if nobody wants to be executor?
Another person can apply for a grant of administration, and if no one is willing or able, the Public Guardian and Trustee may administer the estate.
Can I sell the house before probate?
Generally not, if the deceased owned it alone: the Land Title Office will need the grant before the executor can transfer it. A home held in joint tenancy passes to the surviving owner and does not wait for probate.
Who pays the lawyer?
Legal fees for administering the estate can be paid from the estate, but the court or the beneficiaries have to approve them. In a dispute, costs depend on the outcome and on any court order.
What does a first meeting cost?
Nothing for the first 30 minutes on an estate dispute. Probate and planning work is quoted when you call.
