Common questions that we routinely hear from executors are:

What is probate and how is it different from estate administration?

How long does probate take in BC?

How long does the estate administration process take in BC?

What is the probate fee in BC?

Do I need to get probate?

What can I do to avoid probate?

What happens if I die without a will in BC?

Can a notary help executors with probate?

I am acting as executor of an estate, what do I do?

When is probate needed?

How much are executor fees in BC?

What happens when an executor can’t act?

Can I do probate myself?

How do you probate a will yourself?

Do you have to go through probate if there is a will?

What is the difference between a grant of probate and a grant of administration

What happens after probate is granted in BC?

Can an executor decide who gets what?

What assets need probate?

Q.  What is probate and how is it different from estate administration?

• • Probate means to “prove.”  In the case of wills, it refers to the process of proving to the court that a will is legally valid as the last will and disclosing all of the assets in the estate.  Often times people loosely use the word “probate” to refer to the much broader process of estate administration though – only a part of which is applying for probate from the court.  Estate administration ranges from arranging the funeral, preparing the probate application, filing taxes, paying other debts, distributing the estate, and dozens of steps in between.

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Q.  How long does probate take in BC?

•  Probate is handled by the Supreme Court of BC.  The Vancouver Probate Registry currently has a roughly two month delay between the time an application is received and the time that they approve the application.  In recent years, that delay has been as much as six months and as short as two weeks.  Other court registries have different delay times, but dealing with a registry out of town has its own challenges.  See here for a map of the different Supreme Court probate registries throughout the province: https://www.courts.gov.bc.ca/supreme_court/court_locations_and_contacts.aspx

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Q.  How long does the estate administration process take in BC?

• Commonly, estates take anywhere from eight months to two years to wrap up.  Frustratingly, a lot of this time is spent waiting for court processing times and tax clearance certificates.  Estates with complex assets or disputes can take much longer to administer.  Westcoast Wills helps executors navigate the system in the most time and cost efficient manner.

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Q.  What is the probate fee in BC?

• Simply speaking, the probate fee is a tax charged by the court to approve a will, or in the case of an intestate’s estate, approve the administrator of the estate.  In BC, the fee is currently roughly 1.4% of all the assets passing through the estate.  We have a probate fee calculator here to help you approximate what the probate fee will be.

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Q.  Do I need to get probate?

• Typically, executors (or “administrators” where there is no Will) will know if they need to go get probate because someone has told them that they can’t deal with a particular asset until they do.  In BC, there are many circumstances where a grant of probate may be needed.  If the deceased person had (in their own name):
  • real estate – probate will be needed;
  • a bank account – probate may be needed (this frustratingly varies from bank to bank and branch to branch but the threshold is usually around $30,000);
  • a car – ICBC may allow transfer without probate, depending on the total size of the estate;
  • stocks or other financial instruments – probate may be needed (varies by institution)

A probate lawyer at Westcoast Wills & Estates can help you determine if a grant of probate is required.  Contact us.

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Q.  What can I do to avoid probate?

• Our lawyers each wear two hats: estate planning lawyer and probate lawyer.  As estate planners, we help our clients avoid probate where ever possible.  This can be done through trusts, beneficiary designations or joint ownership.  Care must be taken with all of these methods though, as there can be absolutely huge tax ramifications if done wrong.  Consult with one of our estate planning lawyers to avoid probate in a way that works for you and minimizes unnecessary taxes.

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Q.  What happens if I die without a will in BC?

• If you die without a will in BC, you are said to die intestate, and your estate passes by the laws of intestacy.  Simply speaking, all of your assets left after your debts are paid will go to your closest living relatives.  Part 3 of BC’s Wills, Estates and Succession Act dictates the precise rules intestate succession.  Someone (called the administrator) will have to step up to administer your estate.  Usually that is your next-of-kin, such as a spouse or child.  It will be a frustrating process for them.  Just like an executor may have to take a will to court to obtain a grant of probate, that administrator may have to go to court to obtain a grant of administration.  See our article about the implications of dying without a will here: https://www.biv.com/article/2016/2/why-you-need-will/ and on our blog here: https://westcoastwills.com/what-happens-if-i-die-without-a-will-in-bc/ See our webpage about common wills questions here.

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Q.  Can a notary help executors with probate?

• It is long established that notaries cannot give advice to executors regarding probate, nor can they help an executor prepare or amend a probate application (see The Law Society of B.C. v. Gravelle  57 B.C.L.R. (3d) 388 (S.C.) aff’d 2001 BCCA 383).  The probate lawyers at Westcoast Wills & Estates can help you though.  Contact us.

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Q.  I am acting as executor of an estate, what do I do?

• If you are acting as the executor for an estate, Westcoast Wills & Estates would be pleased to help you with estate administration.  See our page about what our probate lawyers can help you with. Executors are entitled to claim a fee for acting, and they can usually charge the estate for any legal fees that they incur.  Sleepless nights, stress and hours of research on the internet by an executor can often be avoided by simply consulting with a knowledgeable lawyer. See our blog for the top 5 reasons to hire a probate lawyer.

• If you prefer to do it all by yourself, prepare yourself for a frustrating adventure (and possibly personal liability), but luckily there are many resources out there to help you.  The Canadian Bar Association has a webpage that provides summarized information for executors.  Courthouse libraries can be a great resource for information as well.

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Q.  When is probate needed?

• The short answer is probate is required when an institution requires it. In other words, if a bank, company, or ICBC says that they will not transfer assets out of the name of a deceased person before they see the grant of probate, then probate is required. In BC, probate is always required when a deceased owns land in their own name.

• Typically when someone in BC dies with over about $30,000 in their own name, the executor of their Will needs to bring the Will to court to obtain a grant of probate.  If there is no will (called intestacy), it is basically the same process, but more frustrating, and is called a grant of administration.

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Q. How much are executor fees in BC?

• Executors are entitled to charge an executor fee in BC. The executor’s fee can be spelled out in the will. Even when the Will is silent about compensation, the Trustee Act of BC allows executors to claim “a fair and reasonable” fee of up to 5% of the total value of the estate. Beneficiaries are usually asked to sign off that the amount claimed is fine with them, otherwise, a judge is asked to sign off on the fee. Executors are also entitled to be reimbursed for reasonable expenses. See our blog post with more details about executor fees in BC here.

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Q. What happens when an executor can’t act?

• When no Executor is available to act, any person that has an interest in the estate can apply to be appointed the administrator of the estate. The law has a list of preferred candidates, in order of priority, that the court will consider when appointing an administrator. Our lawyers can guide you through the process of becoming an administrator.

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Q.  Can I do probate myself?

• • Anyone who is an executor of an estate can apply for probate themselves with enough time and patience. The problem is that the duties of an executor are many. They have to worry about organizing the funeral, filing taxes, dealing with personal effects, paying bills, notifying banks, just to name a few things. The last thing most executors want to worry about is preparing finicky forms and affidavits on top of their already overwhelming job. We can help with everything from a consultation to applying for probate on behalf of executors. Contact us today.

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Q. How do you probate a will yourself?

• • All the probate application forms are available on the Supreme Court website here. As you may quickly find out though, getting the forms is not the problem. The problem comes when executors and adminstrators (when there is no will) try to figure out which forms to use and how to fill them out. Not everyone has a law degree, after all. The Court is extremely picky with how the forms are filled out, and the often send applications back to executors and administrators to fix.  Our experienced probate lawyers at Westcoast Wills & Estates take all the pressure off of executors and administrators having to go through this tedious process. Need convincing? See our blog post on why you should hire a probate lawyer. Contact us to help you.

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Q. Do you have to go through probate if there is a will?

• • With a will or without a will, probate may be required. Whether a grant of probate is required depends on the assets in the estate, and whether the institution responsible for those assets demands probate before allowing the executor to deal with those assets. Some assets like real estate, always require probate.  Generally, banks will not release accounts worth over about $30,000 without probate.  Book in for a consultation and ask an experienced probate lawyer if you want to find out if an estate needs probate. Contact us today.

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Q. What is the difference between a grant of probate and a grant of administration?

• • Both a Grant of Probate and a Grant of Administration are legal documents issued by the court to authenticate power given to an individual to administer an estate. Effectively they are the same, in that once granted by the court, this document allows the executor or administrator to control the estate.
    A Grant of Probate is used when there is a Will and an Executor named.
    A Grant of Administration is used when there is no Will (called intestate) or if the named Executors are no longer alive or able to be Executors.
  • Our estate lawyers are extremely experienced at obtaining both of these types of grants.

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Q. What happens after probate is granted in BC?

• • The grant of probate allows the executor to handle all assets of an estate. The usual course of action is for executors to pool all of the assets of the estate into one central account, then pay all remaining debts from there. After the final tax clearances have been obtained, executors pay the beneficiaries their share of the estate. This is the 10,000 foot view of the process, but there are essential steps in between these central parts. If you are an executor of an estate, it’s a good idea that you consult with a lawyer before doing anything with an estate. Our helpful probate lawyers review a checklist of all the essential steps at initial consultations with executors, and give executors a roadmap of what needs to be done and when.

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Q. Can an executor decide who gets what?

• • No, executors cannot decide who gets what, unless the will permits them to decide. Executors have the legal duty to carry out the terms of the will. Most wills are very clear about who is to receive assets, and there’s very little discretion given to the executor. The one common exception to that general rule is in respect to personal effects. In about 50% of wills, executors are given the sole discretion to distribute the deceased’s personal effects among the residual beneficiaries. Typically, this occurs when the will maker divides the residue of the estate “equally between their children.” Further down in the will, the executor is given the right to allocate items (whether real estate, bank accounts or personal effects) to any of these beneficiary’s share. This is most commonly used just for personal effects. As long as the overall split of the entire estate is valued equally between the children, the executor can choose how to allocate the personal effects in this case.

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Q. What assets need probate?

• • There are three ways assets can pass upon the death of a person. 1. Beneficiary Designation; 2. Joint Tenancy; and 3. through their estate. Only assets passing through the estate need to be declared in probate, if probate is required. There are some notable exceptions to this: sometimes joint tenancies revert to the estate. This is called a resulting trust. Resulting trusts happen when someone gratuitously puts someone else joint on their account or land. After the original owner dies, that asset is held in trust for the deceased persons estate by the remaining joint owner. This is a rebuttable presumption that the law makes though. If the original owner of the asset indicates in writing at the time of transfer that their intent is for the new owner to inherit the account, then the trust doesn’t occur and the new owner inherits the account after death. This rule does not apply to transfers between spouses. Some ill-informed judges have applied this same law of resulting trust to beneficiary designations as well.

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