Do I Need Probate in British Columbia? How to Tell

When someone close to you has died, one of the first questions is whether the estate has to go through probate. The honest answer in British Columbia is that it depends on what the person owned and who is holding it.

This article explains how the need for probate usually arises, which property may not need it, and how to find out for your own situation. It is general information, not advice on a particular estate.

This article covers the law of British Columbia.

What probate is, in plain words

Probate is a court-supervised process that checks that a 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 called a grant of probate.

If there is no will, no executor is named, or the named executors cannot or will not act, a person applies for a grant of administration instead. It gives that person, the administrator, authority to administer the estate.

Applications for probate or administration go to the Supreme Court of British Columbia, and you can apply at any B.C. Supreme Court registry. A grant gives the personal representative exclusive authority to administer the estate under the grant's terms.

There is no list of estates that must be probated

No BC statute lists which estates must be probated. Instead, the need usually comes from the organizations holding the deceased's assets. Agencies and financial institutions can require a will to be probated before they accept it and transfer assets to the executor, and each one has its own policy.

That means there is no single dollar figure that settles the question. No BC statute sets a threshold below which a bank must release funds without a grant, so ask each institution what it requires and get its answer in writing if you can.

It helps to know why institutions care. A person who pays or transfers estate property to the personal representative before having notice that the grant was revoked is protected from liability, even if the grant was defective. This is why banks and others rely on the grant.

Property that may not need a grant

Property that does not pass to the personal representative is outside 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. A plan administrator that pays the designated beneficiary is discharged for that benefit.

Land held in joint tenancy goes to the surviving joint tenants by a transmission application to the Land Title and Survey Authority (LTSA). That route needs original government-issued death documents, such as a death certificate. The LTSA lists a death certificate and a grant of probate as accepted documents.

There is an exception. If the title does not say joint tenants, the owners are tenants in common and the survivorship transmission does not apply. If any owner is a corporation, trustee or business partner, the LTSA says to contact a legal professional. Land held in the deceased's sole name is also different, so confirm the requirements with the LTSA or a lawyer before you plan a sale.

Small estates and the $25 000 figure

No probate fee is payable if the value of the estate does not exceed $25 000. Likewise, the $200 court fee to file for a grant is not payable where the estate does not exceed $25 000.

Those are fee exemptions. They do not mean a grant is unnecessary. A bank or other holder of assets may still ask for one, even for a modest estate.

If a grant is needed, the probate fee is calculated on the gross value of the property that passes to the personal representative, as stated in the Statement of Assets, Liabilities and Distribution. A benefit paid to a designated beneficiary is not caught by that definition.

What to do next

• List everything the person owned and owed, including land, accounts, vehicles and debts.
• Note how each asset is held: sole name, joint, or with a named beneficiary.
• Ask each bank, pension plan and insurer what it needs to release the asset.
• Check land titles to see whether owners hold as joint tenants or tenants in common.
• Find the original will and confirm who is named as executor.
• If the person died before March 31, 2014, get advice, because those estates still fall under the old laws and regulations.

If it turns out a grant is needed, the first step is notice. Before applying, the applicant must deliver a Notice of Proposed Application in Relation to Estate in Form P1, and the application cannot be made until at least 21 days after the notice and materials are delivered.

You do not need a lawyer to apply for a grant of probate or administration in BC. A lawyer can still help if the assets are mixed, the title is unclear or family members disagree.

Frequently asked questions