If a person dies leaving a Will, the executor named in the Will can apply to the Court for a grant of probate. A grant of probate will allow the executor to administer the estate of the testator.
If a person dies leaving a Will, and the executor named in the Will renounces executorship or is unable to apply for a grant of probate, or if no executor is named in the Will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority:
When there is no Will or executor, certain individuals are eligible to apply for a grant of administration. If the application is successful, the grant of administration works similarly to a grant of probate and the applicant can administer the estate of the Deceased.
If a person dies without a Will, the court may grant administration of the testator’s estate to one of more of the following persons in the following order of priority:
One of the first things an applicant should do is start compiling an inventory of the testator’s assets and liabilities. The reason behind early determination of assets and liabilities is if the estate has minimal value, it may not be worth it to administer the estate.
If it is determined that the estate is worth administering, the applicant can start taking the steps as required by the Supreme Court Rules.
Before an applicant can apply for a grant, the beneficiaries and potential interested parties must be notified that the applicants intend to apply for grant. This is done by mailing a copy of the P1 – Notice of Proposed Application in Relation to Estate and a copy of the Will (if applicable) to all interested parties. A copy of this form can be found on the Courts of British Columbia’s website.
Further to Rule 25-2 of the Supreme Courts Rules, “all interested parties” would include the following people:
Note that the Supreme Court Rules sets out how to deliver the P1 – Notice of Proposed Application if the beneficiary is a minor or incompetent. That is, notice must be provided to the Public Guardian and Trustee and/or the known Committee of the minor or incompetent.
After the P1 – Notice of Proposed Application is mailed to the applicable parties listed above, the applicant must wait 21 days before submitting their application for a grant of probate or grant of administration in court.
If in doubt, send the P1 – Notice of Proposed Application to everyone who possibly can have an interest in the estate. That way, you do not face a later legal challenge in the event you forgot to notify an interested party.
During this time, the applicant should complete a search for wills notice with Vital Statistics as the results are needed for the grant application. The application for a search for wills notice can be done by mail or in person.
If you have access to BC Online, a request can be completed on-line and the results will be mailed to you.
Once the 21-day waiting period is over, the applicant will file the following documents in Court:
All forms referred to in the above paragraphs can be found easily on-line.
If the applicant is unable to ascertain the testator’s assets and debts as they do not have access to this information, the applicant can request authorizations from the Court. In this circumstance, the applicant would request authorization to obtain estate information by ticking the applicable box in the Submission for Estate Grant (Form P2) listed above. Draft copies of the authorizations in Form P18 should be provided with the application materials.
Once the court provides these authorizations, the applicant will provide these authorizations to any asset or debt holders with a request to provide the necessary information to complete the Affidavit of Assets and Liabilities.
Once the assets and debts are ascertained, the applicant must file an Affidavit of Assets and Liabilities and pay the probate fees. The court will not grant probate/administration without these steps being taken.
After the above noted documents are filed there is a waiting period of roughly 1-4 months before the grant will be issued from Court, as the file backlog at the Court can be significant. Should the Court require further information, an Estate Checklist will be provided to the applicant setting out the steps that need to be taken and the probate fees that need to be paid based on the Affidavit of Assets and Liabilities.
As you can see from the above, obtaining a grant of probate or administration is no easy task. Indeed, the Court will reject submissions with even minor errors or omissions. That is why most executors turn to a lawyer to help complete the grant.