Do I Need Probate in British Columbia? When a Grant Is Required

After a death, one of the first questions is whether the estate has to go through probate. People often hear a firm answer from a friend, but in British Columbia the real answer depends on what the person owned and who is holding it.

This article explains the factors that make a grant necessary, what a grant actually does, and how to find out what your situation needs.

This article covers the law of British Columbia.

There is no single rule

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.

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. That is why two estates that look alike can have different answers.

The factors that make a grant necessary

• Institutional policy. 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.
• The type of asset. When a grant is applied for, the court's asset form lists property that passes to the personal representative, such as real property and tangible personal property in British Columbia, and intangible personal property anywhere in the world. Whether a particular asset needs a grant depends on who holds it and what they require.
• Land. Land held as joint tenants passes to the surviving owners by a transmission application, but if the title does not say joint tenants, the owners are tenants in common and the survivorship transmission does not apply.
• Whether there is a will. If there is no will, or no executor can act, a person applies for a grant of administration.
• Assets outside the estate. A benefit paid to a designated beneficiary under a benefit plan, such as a pension, RRSP or life insurance designation, does not form part of the estate.

No BC statute lists which estates must be probated, and each organization holding the deceased's assets has its own policy on whether it needs a grant. Ask each one what it requires before you assume either way.

What a grant does for the executor

A grant gives the personal representative exclusive authority to administer the estate under the grant's terms. A personal representative has 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.

It also gives comfort to the people dealing with the estate. 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.

If there is no will or no executor can act

If there is no will, the will names no executor, or the named executors cannot or will not act, a person applies for a grant of administration, which gives that person authority to administer the estate. With no will, the order of priority starts with the spouse or the spouse's nominee, then a child with the consent of a majority of the children, and continues down the list.

Where there is a will but no executor can act, a beneficiary with the consent of beneficiaries holding a majority in interest has first priority. A named executor may also renounce the appointment, which ends their executorship unless a court orders otherwise.

If a named executor is not acting, a person interested in the estate can personally serve a citation in Form P32, which requires the executor to apply for probate. The cited person must respond within 14 days after being served.

What to do next

• Find the will and any beneficiary designations.
• List the assets, noting which are land, accounts or benefit plans.
• Check how land is held on title: joint tenants or otherwise.
• Ask each bank, agency or other institution what it requires.
• Confirm with a lawyer if the answers conflict or the estate is complicated.

You do not need a lawyer to apply for a grant, but asking one whether a grant is needed first can save time. If the death was before March 31, 2014, the old laws and regulations still apply to the estate.

Frequently asked questions