Do You Need a Bond to Be an Estate Administrator in British Columbia?

If someone dies without a will, a family member usually steps forward to be the administrator. Many people have heard that you must buy a bond before the court will let you act, and they worry about the cost.

In British Columbia the rule is more relaxed than people expect. This article explains when security is not needed, when it can be required, and what to do if someone asks for it.

This article covers the law of British Columbia.

The general rule: no security

Under WESA s. 128(1), no security for administering an estate has to be provided by an applicant. That means most administrators in a typical family estate apply for the grant without buying a bond.

The Act uses the word security, not bond. A guarantee bond is one common form of security, but it is not the only one the Act contemplates.

When security can be required

There are two exceptions to the general rule.

• A minor or incapable person with no nominee is interested in the estate.
• The court requires security on an interested person's application.

An interested person could be a beneficiary or successor who worries about how the estate will be handled. The court decides whether the request is justified, and a lawyer can help you understand how a judge might look at the facts.

The notice process helps keep this visible. The P1 notice to intended recipients must state that they may seek an order requiring security from the administrator. That statement is not required where the applicant is the Public Guardian and Trustee.

What form security can take

If security is required, the court may accept any form or amount of security. It may instead restrict the administrator's powers without prior court or Public Guardian and Trustee approval.

So a requirement for security does not always mean an insurance bond. The court has flexibility, and the right outcome depends on the estate and the concerns raised.

What it costs is not set by the Act. If a bond is used, the price is set by the insurer or guarantor and depends on the amount and your circumstances, so it is worth getting a quote. A cost that is paid for the estate's benefit may raise questions about how it is recorded, so ask a lawyer or accountant before assuming it comes out of the estate.

Who can apply to be administrator

The first priority is the spouse of the deceased or a person nominated by the spouse. A child ranks next, applying with the consent of a majority of the children. Despite the priority rules, the court may appoint any person it considers appropriate in special circumstances.

The application is made at any B.C. Supreme Court registry and requires Form P2 and a wills notice search. You must first deliver a Form P1 notice and may not apply until at least 21 days after delivering it.

A personal representative of an intestate estate is conclusively deemed to be the personal representative from the date of death. This can matter for steps taken around the estate before a grant, so how it applies to you depends on your situation and is worth confirming with a lawyer. Where a minor is the sole executor of a will, the court may grant administration with will annexed to another appropriate person until the minor reaches 19 years of age.

Notice and filings that come with the application

On an intestacy, the P1 notice goes to each intestate successor, or to each person who would be one if the estate exceeded the spouse's preferential share. If there is none, it goes to the Attorney General. It also goes to each creditor with a claim over $10,000, to the Nisga'a Lisims government or a treaty first nation if applicable, and to anyone the court orders or who has served a citation.

Minors are given notice through a parent, a financial guardian or known addresses, and also the Public Guardian and Trustee. Mentally incompetent persons are notified through their committee or the Public Guardian and Trustee. Ordinary mail is deemed delivered on the mailing date. Email or fax delivery counts only after the recipient acknowledges it in writing, and the applicant must then swear a Form P9 affidavit.

• Form P2 and the applicant's affidavit in Form P5.
• Form P8 for each additional applicant.
• Two copies of the wills-notice search certificate, and Form P9 affidavits of delivery.
• An affidavit of assets and liabilities in Form P10 for a domiciled estate or P11 for a non-domiciled estate, which may be filed later.

The applicant must swear that a diligent search for a will was made, including electronic devices and third-party repositories. If no one is willing or able to be administrator, the Public Guardian and Trustee may administer the estate, but it may refuse if the cost of administering would exceed the value of the estate's assets.

What to do next

• Confirm you have priority to apply, or that the people with priority agree.
• Complete the wills notice search and a diligent search for a will.
• Deliver the P1 notice to the people the rules require and wait at least 21 days.
• Check whether any beneficiary is a minor or incapable person without a nominee.
• If someone asks for security, get legal advice before agreeing to a form or amount.

Frequently asked questions