Can an Executor Act Before Probate Is Granted in British Columbia?

Soon after a death, a named executor faces bills, an empty house and questions from family. The court grant can take time, so it is natural to ask what you may do in the meantime.

This article explains how the grant fits in, why institutions rely on it, and which tasks are generally practical before it arrives. How far your own authority goes before a grant depends on the facts, so it is worth confirming with a lawyer.

This article covers the law of British Columbia.

What the grant does

Probate is a court-supervised process that checks the will is real, was made without fraud or undue influence, and is the last will the person made. The court document that certifies this is the grant of probate.

A representation grant gives the personal representative exclusive authority to administer the estate under the grant's terms. Once you have one, you have the same authority over the estate that the deceased would have had if living, subject to any contrary intention in the will and to other enactments.

Why institutions ask for the grant

No BC statute lists which estates must be probated. In practice, a grant is needed when an organization holding the deceased's assets asks for one, and each agency or financial institution has its own policy.

The reason is protection. A person who pays or transfers estate property to the personal representative before having notice that the grant was revoked is protected from liability, even if the grant was defective. That is why banks rely on it, and why they may refuse to release money to an executor who only holds the will.

Practical steps while you wait

Some steps are about preparation rather than using estate assets. Before applying, you must make a diligent search and inquiry to find the deceased's property and liabilities [WESA s. 122]. That work can start right away.

• Locate the original will and keep it safe.
• Get several copies of the death certificate.
• List assets and debts, with values at the date of death.
• Keep property secure, such as a home, a vehicle and valuables, and keep insurance in place. Ask the insurer what it requires of you.
• Keep a written record of every action and every payment you make.
• Prepare the Form P1 notice, since the application cannot be filed until at least 21 days after it is delivered.

Whether you can pay the funeral bill from estate money, or from your own pocket and be repaid later, depends on the circumstances and on what the institution will allow. Ask the institution what it will do before the grant, and talk to a lawyer if the amounts are large.

Property that moves without a grant

Not everything goes through the estate. A benefit paid to a designated beneficiary under a plan, such as a pension, RRSP or life insurance designation, does not form part of the estate. The plan administrator that pays the designated beneficiary is discharged for that benefit.

Land held in joint tenancy goes to the surviving joint tenants through a transmission application to the Land Title and Survey Authority, and a death certificate is among the accepted documents. If the title does not say joint tenants, the owners are tenants in common and the survivorship route does not apply. Land held in the deceased's sole name is different, so confirm the requirements with the Land Title and Survey Authority or a lawyer before assuming you can deal with it.

Risks, and what to do next

Be careful about distributing anything early. A personal representative must not distribute the estate within 210 days after the grant is issued, except by court order. The estate may be distributed earlier if all beneficiaries, and all persons who could bring a variation claim, consent. A legal representative who distributes assets without a Canada Revenue Agency clearance certificate, requested on Form TX19, is personally liable for unpaid amounts, up to the value of the assets distributed.

If you do not want the role, an executor may renounce, and an executor who renounces and has not intermeddled in the estate is not liable. That is a reason to get advice before you start handling assets if you are unsure.

• Do not move, sell or give away estate property until you have confirmed your authority.
• Contact each institution and ask what it needs.
• Apply for the grant when ready, or ask a lawyer whether you should.

Frequently asked questions