Grants of Probate and Grants of Administration

When someone dies, the first steps taken by those closest to the deceased are usually to arrange the funeral and locate the Will. The Will dictates who the deceased appointed as ‘executor’ to be responsible for carrying out the administration of the estate. An executor is the only person (or persons) who has the legal and fiduciary responsibility to manage the deceased’s estate. The executor’s primary responsibilities entail identifying and protecting the deceased’s assets (including buying insurance, if needed), paying debts, taxes and expenses, filing tax returns, making gifts to named beneficiaries and distributing the remaining ‘residue’ of the estate among the beneficiaries named in the Will. In order to commence carrying out these steps, the executor is typically required to obtain an estate grant (called a Grant of Probate) from the Supreme Court of British Columbia (the “Court”), which gives the executor the legal authority to ‘take over’ the deceased’s assets and ‘convert’ the ownership of those assets (such as real estate and bank accounts) from the deceased’s name to the name of the estate. More on this below. 

When there is no Will, the spouse or other family member of the deceased, or other persons, can apply to be appointed the ‘administrator’ of the estate. If successful, the Court will issue an estate grant called a Grant of Administration. 

Both types of estate grants (the Grant of Probate and Grant of Administration) have the same legal effect and vest the applicant with the same legal powers to act on behalf of the deceased’s estate. 

What is ‘Probate’?

Probate is a court process to validate the Will (or the person applying to be appointed administrator) and authorize a representative to act on behalf of and carry out the administration of the estate.

 

The applicant, either the executor or administrator, must prepare a set of appropriate forms and sworn affidavits, and must have complied with any and all applicable notice requirements and other rules, in order to convince the Court that an estate grant should be issued to the applicant. Depending on the circumstances, the application process may be short or long, simple or complex, and usually requires the assistance of an experienced lawyer. 

The estate grant vests the applicant with the powers needed to carry out the administration of the estate. A Grant of Probate or Administration is recognized by third parties such as banks, the Land Title Office, ICBC and the Canada Revenue Agency, and communicates to them that the named executor or administrator is the person who has the authority to act on behalf of the estate. Important actions that may be carried out by an executor or administrator may include instructing banks to sell investments and open or close accounts, signing land title documents to purchase, sell, mortgage or transfer real property, instructing ICBC to transfer ownership of a vehicle to another person, and submitting tax returns on behalf of the deceased or estate that have been signed by the executor or administrator. An executor or administrator named in an estate grant should be able to take any and all steps that are allowed under the law.

How Much Does Probate Cost?

In order to file an application for a Grant of Probate, the Court charges a $200 application fee. The Court also charges $40 for each court-certified copy of an estate grant and Statement of Assets and Liabilities that you require. If the value of the assets of the estate exceed $25,000, then the estate must also pay probate fees to the Province of British Columbia in order to obtain the estate grant.

Probate fees are assessed at a rate of 0.6% on the value of estate assets between $25,000 and $50,000 and 1.4% on the value of estate assets exceeding $50,000 (Probate Fee Act, [SBC 1999] CHAPTER 4, s. 2).

This works out to roughly $14,000 on each million dollars worth of estate assets. For a deceased person who died ordinarily resident in British Columbia, the fee is assessed on the value of real and tangible personal property of the deceased located in British Columbia as well as the value of intangible personal property of the deceased wherever situated (Probate Fee Act, s. 1). Intangible personal property includes bank accounts, stocks, life insurance, and other intangible assets.

The legal cost to hire a lawyer to prepare an estate grant application will vary depending on the complexity of the estate and related factors. Some of the factors that may complicate the process and result in higher legal fees or other costs include the following:

• difficulty discerning the identity of or location of beneficiaries;
• difficulty identifying estate assets, such as in the case of poor or no records, or difficulty obtaining information from institutions in other jurisdictions;
• disputes between competing applicants, such where an alternate executor seeks to be appointed ahead of the primary executor;
• problems with the Will that may require further orders from the court, such as where the Will was not properly witnessed, the Will is missing important clauses or features, or there is more than one ‘Will’ or testamentary document;
• the involvement of the Public Guardian and Trustee in some cases when there is a minor or disabled beneficiary.

Speak with a lawyer to determine the estimated costs of your application, and whether your application may present any complicating factors that may increase the time or cost associated with obtaining an estate grant from the Court. In general, the cost to obtain an estate grant typically ranges from $3,500 to $7,500 in legal fees, plus disbursements and taxes, which may add an additional $1,000-$2,000. If further legal services are sought and provided after the estate grant has been issued, for example, to assist with administering and distributing the estate, these will be in addition. These legal fees are a proper expense of the estate.

How Long Does Probate Take?

Many clients are often concerned that the probate process takes 1 to 2 years. This is not typical.

The rough timeline for obtaining an estate grant is closer to 6 months and consists of the following steps:

Steps to Obtain Estate Grant

Step 1: Locate the Will (if applicable)

(Time Estimate: 1 day to several weeks/months)

• the Executor must locate the original, signed copy of the Will, which will be submitted to the Court with the estate grant application materials
• if the original Will cannot be located, other steps may be required, which will take more time

Step 2: Hire a Lawyer

(Time Estimate: 1 week or more)

• research options
• arrange introductory meetings
• review and sign retainer agreement (contract)
• provide financial retainer (deposit)

Step 3: Gather Information and Prepare Application

Step 3A: Gather Information

(Time Estimate: 4 to 8+ weeks)

• collect contact information for beneficiaries and intestate successors
• collect detailed information pertaining to the deceased’s assets including their fair market value as at the date of death (it can take 4-8 weeks to obtain this information from some banking institutions)

Step 3B: Submit Wills Registry Search

• a formal search of the Wills Registry is conducted to determine whether any Will or a more recent Will of the deceased had been registered
• these results typically take approximately 2 weeks to arrive by mail, originals of which must be submitted to the Court with the estate grant application

Step 3C: Deliver Formal Notice

• a formal notice, in a form required by the Court rules, of the applicant’s intention to apply for an estate grant must be delivered, together with a copy of the Will (if applicable), to all beneficiaries in the Will (if applicable), to intestate successors of the deceased’s estate and to creditors over $10,000 where the deceased died intestate (this may require locating and notifying a possible spouse or children of the deceased, or distant relatives)
• there is a 21-day waiting period that must be observed after the notices are delivered, which means the estate grant application cannot be submitted until at least 21 days after the notices have been sent

Step 3D: Prepare and File Application

• prepare the forms and affidavits that must be sworn by the applicant and filed with the Court

Additional Step, only if required: Obtaining Comments from the Public Guardian and Trustee (“PGT”)

• if notice was required to be delivered to the PGT, the PGT will send a letter requesting further information in order to generate recommendations or ‘comments’ to the Court
• the PGT may take up to 30 days to issue their comments, which may delay the Court’s issuance of the Grant
• this step is usually completed while the application is pending before the Court in Step 4

Step 4: Processing by the Court

(Time Estimate: 4-8 weeks* to several months)

• the Court will review all applications in the order in which they were filed
• once they have reviewed the application, they will reach out to the lawyer or other named contact person to advise whether there are any issues that require resolution, to request payment of probate fees (if any), and/or to advise that the estate grant has been issued and is available for pick-up
• issues may range from minor inconsistencies in the application (which can be resolved quickly) to complex issues that may require submitting further court materials in order to obtain court orders from a judge or master (which can add weeks or months in delay)
• Note: the estate grant will only be issued once all issues have been resolved and probate fees (if any) have been paid. It is not possible to obtain an estate grant without having first paid probate fees

*Vancouver registry processing times have historically varied between 2 weeks and several months depending on their staffing levels and vacation schedules. Other registries may be slower or faster.

Step 5: Issuance of the Grant

• Once the estate grant has been issued, the executor or administrator can access the estate assets and commence administering the estate by providing various institutions a certified copy of the estate grant
• The process of further administering the estate and dealing with any tax filing obligations can add many more months or years to the process depending on the circumstances

How Do I Know if Probate is Required?

There is no law that states an executor or administrator must obtain a Grant of Probate or Administration. An executor or administrator usually learns a Grant of Probate is required when they attempt to deal with the deceased’s registered property, such as bank accounts, real property or vehicles. This occurs when the executor attends at the bank to access or transfer the deceased’s bank accounts, or when they speak to a lawyer, notary or mortgage broker about taking some step with respect to the deceased’s real property, or when they attend at ICBC to transfer the deceased’s vehicle. The institution will advise the individual that those steps can only be taken upon presenting an estate grant naming the individual as the appointed executor or administrator. These institutions have strict rules in places to ensure that the deceased’s property is not transferred contrary to the law and will usually require a court-certified copy of the grant prior to taking instructions from the executor.

With respect to real property, if the deceased was the sole owner of the property, or a part owner registered as a tenant in common (or in ‘tenancy in common’), then the Land Title Office will require a court certified copy of an estate grant to be filed in order to convey the interest in property or deal with any charges on title.

With respect to bank account assets, the general rule of thumb is that if the accounts are worth more than a couple thousand dollars (this can vary significantly by institution and depend on whether the executor is the spouse and sole beneficiary of the estate), then an estate grant will be required by the bank.

An estate grant is not required to facilitate the payment of any registered bank account assets (such as Registered Retirement Savings Plans or Tax-Free Savings Accounts) to designated beneficiaries or successor holders, or to pay out life insurance proceeds to designated beneficiaries. Of course, these beneficiaries had to have already been appointed on the plans or policies during the lifetime of the deceased – they cannot be appointed after death by the executor. Usually, an original death certificate is required to be provided.

ICBC will usually require an estate grant where the estate is worth more than $25,000. ICBC can provide a table that summarizes their rules and what they require to deal with estate vehicles in different circumstances.

An executor should seek advice from a lawyer to determine whether a Grant of Probate or Administration is required for the estate.

How Do I Know if My Application Will Be Simple or Complex?

The simplest type of estate is one where all of the deceased’s assets were held jointly with true right of survivorship with a spouse or other person, and where the deceased had designated the spouse as beneficiary on all other assets. These types of estates typically do not require a Grant of Probate from the Court, and all asset transfers can be effected on filing a death certificate with the financial institutions and the Land Title Office. This is typically the situation when the first spouse in a traditional marriage dies and all assets were owned jointly or designated to the surviving spouse as beneficiary.

The next simplest type of estate involves a deceased person who owned a few types of assets in British Columbia, left a validly prepared Will naming one or more executors and beneficiaries that did not leave out any spouse or children, and all beneficiaries are mentally competent adults. A Grant of Probate is likely required, but the process should be relatively simple and straightforward.

Some intestacy applications for a Grant of Administration may also be simple. 

There are any number of reasons, issues or factors that can complicate the probate process some of which have already been referenced above. These may include situations where the deceased lived and died in another country, where the deceased left a Will that did not provide for a spouse or child or where the identity of any spouse or children is unknown, where the assets are unknown or require significant effort to discover, where the Will is homemade or was made in another jurisdiction, where the deceased died leaving minor children or a disabled beneficiary whose share of the estate was not left ‘in trust’, or where the deceased may have revoked, replaced or amended their Will. These are just some of the issues that can arise.

An experienced lawyer can assist you with completing your application as efficiently as possible, regardless of the complexity or issues presented by the estate.

For more information or to answer questions concerning a probate or estate administration matter, reach out to Veronica Manski, Probate and Estate Administration Practice Leader at 604-416-4403 (Vancouver) or 236-420-6400 (Kelowna) or vmanski@onyxlaw.ca. 

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