What is a Probate Lawyer?

There is so much to be done after a loved one dies. How do you deal with their belongings? What legal forms and legal documents are needed to sort out your family member’s property and debt? Probate rules are notoriously confusing. The probate process can all feel very overwhelming, especially while you are grieving.

The good news is that you don’t have to navigate the probate rules or legal process alone. You can hire a probate lawyer to guide you through each step of the estate administration process. This article will explain what probate is, whether you need it, the probate process, and how a probate lawyer can help you settle your family member’s estate.

How do you go about dealing with the estate of a deceased family member?

When a person dies, the belongings they leave behind are collectively called their estate. A deceased person’s estate may include personal belongings, real estate, bank accounts, vehicles and other types of assets or debts. In British Columbia, the executor appointed in the Will is the only person who can manage or distribute the deceased’s estate.

The difficulty is that institutions like banks, the Land Title Office, ICBC, and the CRA want some assurance that the executor has legal authority to deal with the estate property. These institutions have strict rules in place to ensure that a deceased’s person’s property is not transferred contrary to the law. A court-certified “Grant of Probate” or “Grant of Administration” is recognized by these institutions and communicates to them that the named executor or administrator is the person who has the authority to act on behalf of the estate.

How is a Grant of Probate obtained?

Probate cases are started by bringing an application in the British Columbia Supreme Court. If successful, the Supreme Court will issue a document called an “estate representation grant” (also referred to as a “Grant of Probate” or an “estate grant”) which confirms that the Will is valid and who is in charge of the estate. The executor can then “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.

What if there is no Will or no executor appointed in the Will?

What if the person died without a will, if their will did not appoint an executor, or if the person named as executor in their Will dies before the will-maker? In these situations, certain people can apply to be appointed the “administrator” of the deceased’s estate. Typically, the surviving spouse, child of the deceased, or other family members of the deceased will apply to be appointed as administrator.

Probate cases in these situations also start with an application in the British Columbia Supreme Court. If successful, the Supreme Court will issue a document called a “Grant of Administration,” which says who will be the person in charge of the estate, and how the estate will be administered and distributed.

Both types of estate grants (the Grant of Probate and Grant of Administration) have the same legal effect. Both an executor and an administrator (both are known as the “personal representative” of the deceased) have the same legal powers to act on behalf of the estate of a deceased person.

Do all wills in BC have to be probated?

The short answer is not necessarily. Not all wills require probate. But many do. Personal 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. Probate is always necessary if the deceased person owns real property in British Columbia their own name or as tenant in common (as opposed to joint ownership with the right of suvivorship).

An estate grant is not needed to effect 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 proceeds of life insurance policies in accordance with beneficiary designations. When beneficiaries are properly named in an RRSP, TFSA, RRIF, or life insurance policy, the asset passes outside of the estate of the deceased person. A death certificate is usual all that is needed to effect smooth transfer of these assets.

Are there other reasons that make probate necessary?

There are other factors that can make a probate application necessary. Not all wills require it, but larger estates and more complex estates typically do require probate. A probate application may also be necessary if there are issues with the way the will was prepared, if there is a dispute about a proper heir or how to divide certain assets. A probate application is necessary if there is no will or if no executor was appointed in the will. An experienced probate lawyer can assess the situation and provide legal advice on whether a Grant of Probate or Administration is required for the estate. 

It is worth noting that an estate planning lawyer can help avoid these issues via the estate planning process. Getting as much in order as possible before a family member passes away will simply the estate administration process. 

Is it necessary to hire a probate lawyer?

You do not have to hire a probate lawyer to apply for a Grant of Probate or Administration. You can prepare all of the necessary Supreme Court legal forms and paperwork on your own. That being said, probate cases can be very complicated, even for seemingly “simple” estates. Probate applications take time to put together, and there are several stages. Our probate lawyers prepared this overview of the steps to obtain probate.

Once submitted to the probate registry, it can take up to several months to review and approve the probate application, and issue a grant. If there are mistakes in the probate application, it will be rejected, causing delay in the administration of the estate. The executor or estate administrator is stuck in a holding pattern until the estate grant is issued. The deceased person’s property can’t be dealt with. Beneficiaries may quickly become frustrated and start legal proceedings. A probate lawyer can help avoid all of that, and guide you when and if legal issues arise. 

What does a probate lawyer do in Canada?

You may be wondering, what is a probate lawyer? What does a probate lawyer do?

A probate lawyer (also known as a probate attorney) helps settle an estate as effectively and efficiently as possible.

As discussed, probate applications are challenging for the majority executors and administrators. But the application is just the first step in the probate process. After the estate grant is issued, the real work begins for the executor or administrator.

Duties of an executor or administrator are many and varied, including locating and protecting the deceased person’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 (or according to the rules of intestacy if the person died with no will). If there are legal proceedings to challenge to whether the will is legally valid, wills variation claims by disinherited surviving spouse or children, or problems locating assets or beneficiaries, the entire process becomes even more challenging to navigate on your own.

A probate attorney can assist the executor or estate administrator with all of those tasks, ensuring that deadlines are not missed and mistakes are avoided in the probate process. The team of probate lawyers at Onyx Law Group regularly assists clients to administer estates and trusts. We ensure the smooth transfer of property and assets and the proper administration of the estate, from start to finish.

What is the probate fee in BC?

The cost to obtain probate in British Columbia depends on a few factors. The Supreme Court registries charge a $200 fee to file the probate application with the court registry for estates valued at over $25,000. Court registries also charge $40 for each court-certified copy of the estate grant and Statement of Assets and Liabilities required.

Then there is the issue of probate fees, which are also referred to as “inheritance taxes”. If the estate value is $25,000 or less there are no inheritance taxes. For estates valued at more than $25,000, the estate must pay probate fees to the Province of British Columbia before the estate grant is issued. 

Probate fees of 0.6% apply to the value of estate assets between $25,000 and $50,000 and 1.4% on the value of estate assets over $50,000. Our probate lawyers offer a probate calculator if you would like to get a good estimate. Reach out for to a lawyer for legal advice if you are unsure if an asset should be included in the estate’s value.

How much does it cost to hire a probate lawyer to obtain an estate grant?

Generally speaking, if you hire a probate lawyer, legal fees, disbursements and taxes to obtain a Grant of Probate from the British Columbia Supreme Court will cost the estate at least $7,500. Bear in mind, however, that if you do hire a probate lawyer, the legal fees paid are a proper expense and may be paid out of the estate (subject to the approval of the beneficiaries, heirs-at-law or the court). A skilled probate lawyer will save time and headaches. The probate attorney’s experience makes their services and legal advice worth every penny.

How long does probate take?

It typically takes about six months to obtain an estate grant. Then, when dealing with assets in an estate, it can often take upwards of a year for the estate to be fully administered and for beneficiaries to eventually 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 probate application to probate court is granted (if a probate case is necessary).

Need legal advice on from a British Columbia probate lawyer?

Our experienced probate lawyers 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. 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. 

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) 900-2538 or vmanski@onyxlaw.ca.