The probate process is undoubtedly a legally taxing process for bereaved families. As such through our prior blogs, we’ve discussed strategies to avoid probate. We’ve also written about the probate process and the steps involved in a probate application, should one find oneself in the midst of one. However, in today’s blog post, we’ll talk about what happens after probate is granted in BC, highlighting the responsibilities of the estate executor. Because, you see, the real work for the estate executor or administrator begins once the probate grant has been issued.
Our team regularly assists clients with applications to obtain a Grant of Probate from the British Columbia Supreme Court. We provide legal advice to executors, administrators, and trustees on their duties and responsibilities every step of the way to administer estates and trusts. We can help you navigate the process from beginning to end. Contact us today for practical advice and effective solutions.
The complicated legal process and sheer number of tasks and responsibilities in the estate administration process can be overwhelming for the executor named in the Will or the administrator appointed if the deceased person died without a Will. The challenge is even greater when that person is simultaneously grieving the loss of a loved one. In this blog we will answer the question ”What happens after probate is granted in BC?”.
In British Columbia, probate is a legal process started by applying to the BC Probate Registry of the Supreme Court. Through this process, the court formally approves the original Will as the valid Last Will and Testament of the deceased person and confirms the legal authority of the person to act on behalf of the deceased’s estate. That person is then legally authorized to begin administering the deceased person’s estate.
Here are some important terms that will help you understand the probate process:
Not all Wills need to go through the probate process. The type of assets owed by the deceased person and how they owned them at the time of their death are two of the main factors that determine whether probate is required. The estate representatives often find out that a probate application is necessary when they try to deal with the deceased’s registered property, such as bank accounts, real property, or vehicles.
Third parties such as financial institutions, 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 estate grant is recognized by these third parties and tells those third parties that the executor or administrator has the authority to act on behalf of the estate (to sell or transfer real property; transfer money and close bank accounts, etc.).
The rough timeline for obtaining an estate grant from the Supreme Court is typically about 6 months, though it can take more or less time depending on factors such as the complexity of the estate and the executor’s experience.
Because each estate is different, there is no hard deadline or time limit that applies after probate is granted. The estate settlement process can take longer if the estate has complex assets, or if issues arise (e.g., a challenge to the validity of the Will, or a wills variation claim by a disappointed beneficiary).
While there is no strict deadline, there is a general rule of thumb. In BC, an estate trustee has one year to gather the estate assets and settle the affairs of the estate. This is known as the “executor’s year.” The timeline for the whole process begins to run from the date of death, or from the date the estate grant application succeeds (if it is necessary to apply to probate court).
Here are some of the key responsibilities of the estate representative throughout the estate administration process:
The executor must gather, inventory, and obtain values for the deceased’s assets and debts/liabilities. They are responsible for securing estate assets and ensuring adequate insurance coverage is in place. The valuation date for estate assets is the date of death.
Before filing the estate grant application, the executor must prepare an affidavit of assets and liabilities (Form P10) that lists the deceased’s property (homes, bank accounts, etc.) and liabilities (mortgages, credit cards, and other outstanding debts). All of the deceased’s assets and outstanding debts need to be included because the probate fee payable by the estate is based on what is listed in Form P10.
Once the probate application has been accepted by the court and probate fees are paid, the Supreme Court issues the estate grant. This gives the estate executor or administrator the legal and fiduciary responsibility to manage the estate on behalf of the deceased person. The executor can now begin administering the estate, which includes dealing with the deceased’s assets and outstanding debt:
The executor provides a certified copy of the estate grant to third parties such as financial institutions, the Land Title Office, and ICBC, which permits them to deal with the deceased’s assets.
For example, the executor can transfer or sell a home, transfer funds in a bank account to the estate’s account and sell or transfer ownership of the deceased person’s vehicles. The estate grant gives the executor legal authority to sign any necessary documents.
The executor may need to take legal action to recover outstanding debts owed to 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 off.
The executor must examine and verify claims against the estate from creditors or other interested parties.
The executor must notify creditors of the deceased person’s passing and may need to advertise to determine if there are any other creditors of the estate.
The executor must either contest or settle all outstanding debts before distributing estate assets to beneficiaries.
The executor must coordinate the estate’s tax obligations by hiring an accountant to file the required tax returns in respect of the deceased person, including a final income tax return and estate tax return. After paying all outstanding tax debts including interest and penalties, the executor must apply for a clearance certificate from the Canada Revenue Agency.
The executor is responsible for administering any testamentary trusts unless a different person is named in the Will to carry out a specific trust. For example, a trust can be set up in a Will requiring a minor child’s inheritance to be held in trust on that child’s behalf until the child reaches a certain age. The executor should hire an accountant to prepare tax returns on behalf of the estate.
Throughout the estate administration process, the executor must interact with beneficiaries, address their concerns, and keep them updated—especially if there are delays in administering the deceased’s estate.
The executor must keep accurate records of all transactions and decisions made on behalf of the estate throughout the estate administration process.
The executor should seek legal advice and guidance as necessary. Reasonable fees are paid by the estate, not the executor personally.
Approval of accounts must be obtained. The executor prepares a detailed accounting of receipts and disbursements 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).
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. If the deceased died without a Will, the residue of the estate must be distributed to family members according to the rules for intestate successors set out in WESA.
There is a waiting period that has to be factored into the process as well. WESA imposes a 210-day waiting period during which an executor must not distribute the estate without beneficiary consent or a court order. The waiting period is needed to allow time for any claims for maintenance from the estate—also known as a wills variation claim—to be brought. These claims can be brought by the deceased person’s spouse or children if they believe that the Will fails to make adequate provision for them.
If the executor distributes an estate before the 210-day waiting period has passed, he or she is exposed to personal liability if a maintenance claim is later brought. When a deceased’s Will is challenged, the estate administration process is put on hold and the executor must not distribute the estate without the court’s permission. The executor’s duties include participating in the estate litigation as needed (but remaining neutral).
An experienced probate lawyer at Onyx Law Group can assist you with determining if probate is required and with completing the probate court application as efficiently as possible, regardless of the complexity or issues presented by the estate.
We provide advice to executors, administrators, and trustees on their duties and responsibilities every step of the way. Whether the situation is contentious or non-contentious, relatively simple, or highly complex, a probate lawyer at our firm can guide you through each stage of the estate administration process from start to finish.
Contact us today to schedule a free probate and estate administration consultation. Or, 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 at (604) 256-5726 or email@example.com.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at
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