Probate BC Checklist – How to Successfully Navigate Probate

Estate administration is complex. There are many steps that need to be taken after a death, and probate rules are notoriously confusing. On top of that, dealing with a loved one’s estate can be emotionally challenging.

However, the probate process doesn’t have to be overwhelming. With the right guidance and advice, executors, administrators, and the deceased person’s family members can successfully navigate probate and carry out their loved one’s final wishes.

If you’re looking for experienced help with the probate process in BC, reach out to Onyx Law Group. Our probate and estate administration lawyers can provide legal advice to beneficiaries, executors, administrators, and trustees throughout the probate and estate administration process, including handling will disputes. Contact us today to schedule a free consultation.

In addition to the right legal advice, planning and organization are essential to ensuring the estate administration process goes as smoothly as possible. We prepared this checklist to help you get organized and go into the process with a better understanding of the steps to get an estate settled.

What Is Probate in BC?

In British Columbia, probate is a legal process started by preparing and filing a probate application in the BC Supreme Court to validate a deceased person’s will. Through this process, the Supreme Court formally approves the original will as the valid Last Will and Testament of the deceased person and issues an estate grant (called a Grant of Probate).

The Grant of Probate issued by the court confirms the legal authority of the person named in the will to act on behalf of the deceased’s estate. That person, known as the “executor” is then legally authorized to deal with estate assets, pay estate debts, and distribute what is left of the estate to beneficiaries named in the will.

If the person died without a will, the spouse, a family member of the deceased, or another person 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.

Note that when a person dies without a will, they are said to have “died intestate.” In that situation, estate assets must be distributed to the deceased’s heirs in accordance with the rules of intestacy in BC.

Probate BC Checklist: How to Manage the Application Procedure

We’ve just discussed what probate is and now we will provide you with a checklist of the steps in a typical probate application in BC.

How to Obtain the Estate Grant

Step 1: Locate the will and confirm the executor(s)

The first task is to locate the originally signed version of the deceased person’s will and review it to confirm the person or people named as executor. The executor(s) have a lot of responsibilities, starting with making funeral arrangements, paying funeral expenses and notifying beneficiaries and other interested parties of the deceased’s passing.

Step 2: Seek legal advice

It’s strongly recommended that the executor hire an experienced probate lawyer, even if the estate seems “simple.” The probate 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, advise on whether an estate grant is necessary, and help put the probate forms and paperwork together.

Step 3: Gather documents and information

The executor must gather contact information for beneficiaries named in the will, close family members of the deceased, and intestate successors (those who would inherit if there was no will); compile a detailed inventory of the deceased’s assets and liabilities; and obtain essential documents (e.g., death certificate from the funeral home, property deeds, etc).

Step 4: Notify beneficiaries and interested parties

It is the executor’s responsibility to provide formal notice to certain people before filing the estate grant application. Using the proper form, the executor must notify the named beneficiaries and other interested parties (intestate successors, creditors, immediate family members such as the deceased’s spouse, even if they aren’t named in the will, 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.

Step 5: Prepare the probate application

There are several forms and affidavits that must be sworn by the applicant and filed with the Supreme Court. It’s a good idea to start preparing the probate forms and affidavits during the 21-day waiting period so they are ready to be filed once that notice period has passed.

Necessary probate forms include the Submission for estate grant (Form P2), an Affidavit of assets and liabilities for domiciled estate grant (Form P10) listing all of the deceased’s assets and liabilities, an Affidavit of delivery (Form P9) confirming that all necessary parties received notice in accordance with Step 4. The original will is also filed with the probate application.

Step 6: File the probate application

The executor can file the application materials in person or electronically. Court filing fees and probate fees (if payable) are due when the probate application is filed.

The Supreme Court reviews probate applications in the order in which they were filed. It takes 4-8 weeks for the court to process a typical probate application, but it will take longer if there are mistakes in the application, missing documents, or if other issues arise. Once the application has been approved, the court issues the estate grant.

What Happens After Probate is Granted in BC?

Step 7: Manage estate assets

After the estate grant has been issued, the executor will get certified copies of the estate grant, which he or she can then provide to third parties as proof of their authority to deal with the deceased’s assets. The executor can liquidate the deceased’s assets and/or transfer ownership of the deceased’s assets into the name of the estate.

The money is pooled together after estate assets have been sold or liquidated and the funds are held in trust. The executor can make an interim distribution from the funds held in trust to the estate beneficiaries, but may not distribute all of what remains in the estate until debts, liabilities, and income taxes have been paid.

Step 8: Pay debts and taxes

The executor is responsible for locating and notifying any creditors of the estate and for settling debts and liabilities of the estate (e.g., mortgage on the deceased’s home, credit cards, household bills, lines of credit, and loans). The executor must also prepare income tax filings on behalf of the deceased and their estate, and ensure all taxes are paid.

Step 9: Account to beneficiaries

The executor must prepare a detailed accounting of receipts and disbursements incurred during administration of the estate, an accounting of the executor’s fees, and a proposal as to the distribution of the estate. The executor must obtain approval from beneficiaries (by consent) or approval from the court (by way of a passing of accounts hearing).

Step 10: Distribute Remaining Assets

After accounting to the beneficiaries and receiving the clearance certificate from the Canada Revenue Agency, the executor can distribute the remainder of the estate’s assets to the beneficiaries according to the will.

When Is It Mandatory to Begin the Probate Process?

A probate application is mandatory when the person died without a will owning certain types of assets. An administrator has to be appointed by the court act on behalf of the estate and deal with that property (e.g. assets solely held by the deceased such as a house or cottage).

If, however, the deceased person left a will, probate may not be mandatory. Instead, the question of whether probate is needed depends on factors such as the value of the estate, the type of assets the deceased person owned, how they owned those assets, and whether any legal disputes arise (wills variation claims, challenges to the will’s validity, etc.).

Estate Planning Strategies to Avoid Probate

The deceased person may have done estate planning during their lifetime to avoid probate. For example, if the deceased’s only assets at death are a bank account and a home jointly owned with their spouse, both of those assets pass to the surviving spouse by operation of the right of survivorship, without the need for probate. Similarly, assets that include named beneficiaries other than the estate, such as life insurance, TFSAs, and RRSPs, pass outside of the estate and don’t require probate.

When Is It Necessary to Probate a Will?

In most cases, an executor finds out that a probate application is necessary when they try to deal with certain types of property, such as the deceased person’s bank accounts, real estate, investments, or vehicles. Third parties such as a financial institution, the Land Title Office, ICBC, and the Canada Revenue Agency have strict rules in place to ensure that a deceased person’s property is not transferred contrary to the law.

A court-certified copy of the Grant of Probate is recognized by third parties and tells those third parties that the executor has legal authority to act on behalf of the estate (to sell or transfer real property, transfer money and close bank accounts, etc.).

Exemption for Small Estates

There is an exemption in BC for smaller estates. If the value of the estate does not exceed $25,000, a probate application may not be required, but it depends on the type of assets the deceased person owned when they died. For example, if they own a vehicle, bank account, or certain types of investments, a probate application may still be needed for a small estate.

Note that if the value of estate assets does not exceed $25,000 and probate is needed, the Grant of Probate is issued without the estate having to pay probate fees or court fees.

How Long Does Probate Take in BC?

The rough timeline for a typical probate application is 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, wills not meeting 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 in probate forms and missing documents in probate applications will also cause delay and lengthen the process.

Once the estate grant has been issued, it can often take upwards of a year for the estate to be fully administered and for beneficiaries to receive their inheritance. While there is no strict deadline, there is a general rule of thumb in British Columbia that an executor or administrator has one year to gather the estate assets and settle the affairs of the estate. This is known as the “executor’s year.”  It begins to run from the date of death, or from the date the estate grant is granted (if probate is necessary).

Common Challenges in the Probate Process

Sometimes, the probate process is more complex and requires additional steps. Common challenges that can impact the probate process include:

• Disputes over the validity of the will and challenging a will
• Wills variation claims by the spouse or child of the deceased, challenging the fairness of the will
• Difficulty locating beneficiaries
• Unclaimed inheritances
• Assets located in another jurisdiction
• The executor may need to take legal action to recover outstanding debts owed to the estate
• The executor may need to contest outstanding debts or participate in legal action relating to liabilities of the estate
• Conflict between beneficiaries and executors (lack of communication, delay, mismanagement of estate assets, etc.).

When to Seek Legal Assistance?

You should seek legal assistance as soon as possible if any of the challenges just discussed arise. A probate and estate litigation lawyer can explain rights, options, and legal processes for handling any disputes or issues that come up.

That being said, you don’t need to wait for a problem to seek legal assistance. A skilled lawyer can advise whether probate is necessary, and if so, assist with completing the application as efficiently as possible, ensuring that deadlines aren’t missed and mistakes are avoided in the probate process. Whether you are an executor, administrator, trustee, or beneficiary, if you have questions, concerns, or suspicions surrounding a loved one’s estate, you should speak to a lawyer.

Need a Probate Lawyer in British Columbia?

The team of BC probate lawyers at Onyx Law Group regularly assists clients in administering estates and trusts. We ensure the smooth transfer of property and assets and the proper administration of estates, from start to finish. Whether the situation is contentious or non-contentious, relatively simple or highly complex, a probate attorney can guide you through each stage of the estate administration process. Contact us today for a free consultation.

For more information or legal advice concerning probate law or an estate law matter, reach out to Veronica Manski, Probate and Estate Administration Practice Leader.