Where there is a Will
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:
- A beneficiary who applies having the consent of the beneficiaries representing a majority interest of the estate, including the applicant;
- A beneficiary who applies not having the consent of the beneficiaries representing a majority in the interest of the estate; and
- Any other person the Court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.
Where There is no Will
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:
- The spouse of the deceased person or a person nominated by the spouse;
- A child of the deceased person having the consent of a majority of the children of the deceased person;
- A person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;
- A child of the deceased person not having the consent of a majority of the deceased person’s children;
- An intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;
- An intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration; or
- Any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.
Before Applying for a Grant
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:
- If the deceased left a will, each of the following who is not a person by whom or on whose behalf the documents referred to in Rule 25-2 (1) are to be delivered to:
- Each person who is named in the will as executor or alternate executor;
- Each person whose right to make an application for an estate grant in relation to the deceased is prior to or equal to the intended applicant’s right to make that application;
- Each person who is alive at the time of the deceased’s death;
- Each beneficiary under the will who does not apply to paragraphs a – c above;
- Each person who would have been an intestate successor if the deceased did not leave a will and who is not referred to in paragraphs a – d above.
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.
Applying for a Grant
Once the 21-day waiting period is over, the applicant will file the following documents in Court:
- The original will of the deceased person;
- A submission for estate grant in Form P2;
- An affidavit from the Applicant in Form P3 or Form P4 depending on the following:
- If the application is for a grant of administration or a grant of administration with will annexed
- In Form P3 if subrule (6) of Rule 25-3 of the Supreme Court Rules applies; or
- In Form P4 if subrule (6) of Rule 25-3 of the Supreme Court Rules does not apply
- If the application is for a grant of administration without will annexed, in Form P5;
- If the application is for an ancillary grant of probate or an ancillary grant of administration with will annexed, in Form P6;
- If the application is for ancillary grant of administration without will annexed, in Form P7;
- Two copies of a certificate from the chief executive officer under the Vital Statistics Act indicating the results of a search for a wills notice filed by or on behalf of the deceased;
- An affidavit in Form P9 confirming that the P1 Notice of Proposed Application and a copy of the Will was delivered to all person whom notice was required to be given;
- An Affidavit of Assets and Liabilities in Form P10 see below if assets/debts are unknown;
- If one or more of the executors has renounced executorship, whichever of the following applied:
- If the executor has provided to the applicant a notice of renunciation in Form P17, that notice of renunciation;
- If the executor is deemed under Rule 25-11 of the Supreme Court Rules to have renounced executorship, an affidavit of deemed renunciation in Form P34 prepared by the citor under Rule 25-11(7) of the Supreme Court Rules and any supporting affidavits of service.
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 Application is Submitted
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.
Assets Subject to a Wills Variation Claim
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