How Long Does Probate Take in BC?

Immediately after a loved one’s death, you are dealing with complex emotions while planning a funeral and trying to find their Will. What comes next? How are estate assets handled, and who oversees the deceased’s estate?

The estate administration process can be complex and intimidating. This article is intended to increase your understanding of probate in British Columbia and highlight some of the factors that influence the duration of the probate process.

If you’re looking for experienced help with the probate process in BC please contact Onyx Law Group. Our Probate and Estate Administration lawyers have extensive estate litigation experience to draw up on when acting for clients who are administering an estate or trust.

Defining Probate

What is probate?

Probate is the legal process for settling the estate of a deceased person. Essentially, probate is a court application to validate the Will and authorize a representative to act on behalf of the estate and carry out the administration of the estate.

Key terms in the probate process

Here are some important terms that will help you understand the probate process:

• When a person dies leaving a Will, the executor named in the Will is responsible for carrying out the administration of the estate. That includes managing the estate assets and carrying out the instructions in the Will.
• The executor is typically required to obtain an estate grant (called a Grant of Probate) from the Supreme Court of British Columbia, which gives the executor the legal authority to take over the deceased’s assets and convert the ownership of those assets (e.g., real estate and bank accounts) from the deceased’s name to the name of the estate.
• When a person dies without a Will, the spouse or other family member of the deceased, or other person(s), must apply to the Supreme Court of British Columbia to be appointed the administrator of the estate.
• An administrator has the same responsibilities as an executor. If the application is successful, the Court will issue an estate grant called a Grant of Administration.

Probate in British Columbia

Duties and responsibilities of an executor or administrator

An executor or administrator is the only person with the legal and fiduciary responsibility to carry out the administration of the estate. Their primary responsibilities include identifying and protecting all the assets in deceased’s estate (including buying insurance, if needed); paying outstanding 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.

Probate gives the executor or administrator legal authority

The estate grant vests the executor or administrator with the powers needed to carry out the administration of the estate. Important actions that may be carried out by an executor or administrator may include instructing financial institutions to sell investments and open or close bank 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.

These institutions have strict rules in place to ensure that the deceased’s property is not transferred contrary to the law. A court-certified copy of the estate grant is recognized by third parties such as banks, the Land Title Office, ICBC and the Canada Revenue Agency, and tells those third parties that the named executor or administrator has the authority to act on behalf of the estate.

How Long Does Probate Take in BC?

The rough timeline for obtaining an estate grant is typically about 6 months, though it can take more or less time. Factors that can influence how long probate takes in BC include:

• The complexity of the estate;
• The executor/administrator’s availability and experience;
• The court’s processing time;
• Whether any unusual issues arise (for example, when wills do not meet the formal requirements; when it is not possible to locate a beneficiary or intestate successor; difficulty complying with the requirements of the Public Guardian and Trustee).

Mistakes or missing documents in the probate application will also cause delay and lengthen the process.

Initiating the Probate Process

The Probate Timeline: Stage 1 – Initial Preparations

The first step is for the Executor to 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.

The next step should be to seek legal advice. An experienced estate lawyer can conduct a formal search of the Wills Registry to determine whether any Will or a more recent Will of the deceased had been registered, discuss the options and process if the deceased died without a Will, and advise on whether an estate grant is necessary. Probate is not always required, depending on the size of the estate, the type of assets owned, and how the assets were owned. For example, property held in a trust, property/assets owned jointly, and assets that contain beneficiary designations do not pass through the estate and don’t require probate.

Information gathering is the next step. It is necessary to gather contact information for beneficiaries named in the Will or intestate successors (if there was no Will), and to compile a detailed inventory of the deceased’s assets and liabilities.

The last step is to deliver formal notice (in a form required by the Court Rules) to beneficiaries and other interested parties (intestate successors, creditors, etc.). 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.

The Probate Timeline: Stage 2 – Prepare and File the Application

It is a good idea to begin preparing the probate application during Stage 1, so that it is ready to be filed with the Supreme Court of British Columbia as soon as the 21-day waiting period has passed.

There are several forms and affidavits that must be sworn by the applicant and filed with the Court. The Wills, Estates and Succession Act (WESA) and the British Columbia Supreme Court Civil Rules contain the forms and rules for probate applications in BC.

If the deceased died leaving a Will, the executor must file the required forms and affidavits with the Court, along with the original Will and a death certificate. If the deceased died without a Will, a different form (Affidavit of Applicant for Grant of Administration without will annexed) is filed to obtain an estate grant.

The Probate Timeline: Stage 3– Application Processing

The Court reviews probate applications in the order in which they are filed. Once the Court has reviewed the probate application, it 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.

Potential issues range from minor inconsistencies in the probate application (which can be resolved quickly) to complex issues that may require submitting further documents to obtain Court Orders from a judge or master (which can add weeks or months in delay).

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.

It typically takes 4-8 weeks to several months for the Court to process a probate application. Any issues in the application and the Court’s workload will impact the waiting period.

The Probate Timeline: Stage 4 – Grant of Probate and Estate Administration

Once the estate grant has been issued, the executor or administrator can access the deceased’s assets and begin administering the estate by providing third parties (ICBC, Land Title Office, financial institutions, etc.) with a court-certified copy of the estate grant.

The executor or administrator must gather and inventory all of the deceased’s assets to ensure that all assets are accounted for. The executor or administrator must also deal with tax filings/tax debt, locate and notify any other creditors of the estate, and pay off any outstanding debts.

Once these steps have been taken, the executor can distribute the estate assets to the beneficiaries named in the Will. If there is no Will, the administrator must distribute the estate assets according to the laws of intestacy.

How much does probate cost in BC?

Generally speaking, 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 to $2,000. If further legal services are needed 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.

You should reach out to an estate lawyer. To discuss the estimated costs of a probate application, and whether the application may present any complicating factors that could increase the time or cost associated with obtaining an estate grant from the Court.

Need help with a probate application?

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 discuss 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.