Does an Executor Need a Lawyer to Get Probate in BC?

You have been named as executor, and you are wondering whether you can handle probate yourself or whether you must hire someone. Whether you need a lawyer depends on your situation, but the process has set steps, forms and a waiting period that need care.

This article walks through what a probate application involves in British Columbia, what can complicate it, and how to decide when legal help is practical for your situation. It is general information, not advice on your particular estate.

This article covers the law of British Columbia.

What probate actually involves

Probate is the court grant that confirms your authority as executor. Applications for probate or administration are made at any BC Supreme Court registry. A grant gives the personal representative exclusive authority to administer the estate.

Many banks and other institutions want to see that grant before releasing money. Each financial institution sets its own policy, often a maximum amount it will release without a grant of probate.

The steps you would be taking on

• Search for the deceased's property and debts. An applicant must make a diligent search and inquiry for property and liabilities.
• Submit an Application for Search of Wills Notice, even if you believe you already hold the original last will.
• Deliver a notice of proposed application (Form P1) to the people the court rules require.
• Wait at least 21 days after delivering that notice before applying.
• Include two certificates showing the results of the wills notice search in the application.
• Prepare an affidavit of assets and liabilities: Form P10 for a domiciled estate, or Form P11 for a non-domiciled estate.

Where there is a will, the Form P1 notice goes to the living named executors and alternate executors and to each beneficiary under the will. Where there is no will, it goes to the intestate successors and to creditors whose claim exceeds $10 000.

The court rules for these steps have been amended more than once, so check the current version of the rules and forms before you file.

Probate fees you should plan for

Probate fees under the Probate Fee Act are $6 for every $1 000 or part of $1 000 of estate value over $25,000 up to $50,000, plus $14 for every $1 000 or part of $1 000 over $50,000. No probate fee is payable if the estate is worth $25,000 or less.

Because the fee depends on estate value, the list of assets you prepare matters. Gather values carefully before you apply.

Situations where legal help is more practical

A simple estate with one executor and willing, adult beneficiaries is often the easiest to manage yourself. Certain features make things harder:

• Several executors. A disposition of land by only one or some of several joint personal representatives is not valid without court approval. If some co-executors renounce or do not join the application, the acts of those who obtained probate are as valid as if all had acted.
• An executor who does not want the job. A named executor may renounce, by filing a Form P17 Notice of Renunciation or by being deemed to renounce. Any interested person can also require a named executor who has not applied to accept or renounce.
• A minor beneficiary. If there is no trustee or trust, the minor's share must be paid or transferred to the Public Guardian and Trustee in trust for the minor.
• A grant from elsewhere. A personal representative appointed in another Canadian province or territory may apply to have the grant resealed in BC.
• Timing of distribution. A personal representative must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. With a will, early distribution is allowed if all beneficiaries with an interest and everyone who could bring a wills-variation claim consent. With no will, it is allowed if all intestate successors entitled to a share consent.
• Disputes. Even after the 210 days, distribution needs court consent if a proceeding is under way about someone's status as a beneficiary or intestate successor, a wills-variation claim, or anything else that may affect the distribution.

What to do next

Start by locating the will and making a list of assets and debts. Then decide whether the estate fits the straightforward pattern above. If a specific question comes up about managing the estate, an executor may petition the court for its opinion, advice or direction without starting any other proceeding.

• Locate the original will and any death certificate you will need.
• List assets and debts, with approximate values.
• Identify everyone who must receive the Form P1 notice.
• Note any minors, co-executors, out-of-province assets or possible disputes.
• Talk to a lawyer if any of those points apply, or if you are unsure about a step.

Frequently asked questions