What Legal Powers Does an Executor Have Over Estate Property in BC?

When someone dies, an executor is often expected to deal with their house, bank accounts and belongings right away. It is natural to wonder what the executor is actually allowed to do, and whose permission, if anyone's, they need.

This article explains where an executor's authority comes from in British Columbia, how far it reaches over estate property, and where it stops. The law calls an executor or administrator a personal representative, and this article uses that term too.

This article covers the law of British Columbia.

Where an executor's authority comes from

In BC, a deceased person's estate vests in the personal representative once that person takes office or is appointed. "Vests" simply means the legal control of the estate property passes to them. Until that happens, the estate vests in the court if there is no executor or no will.

Once in office, the personal representative has the same authority over the estate as the deceased would have had, subject to the will and to other laws. So the starting point is broad, but it is never unlimited. The will can shape it, and so can statutes.

What a grant of probate or administration adds

A grant of probate or administration gives the personal representative exclusive authority to administer the estate. In practice, a grant is the document that other people rely on to confirm who is in charge.

Applications for a grant are made at any BC Supreme Court registry. Each financial institution sets its own policy, often a maximum amount it will release without a grant of probate. That means an executor may be able to deal with some small accounts without a grant, while larger assets usually need one. Ask each institution what it requires.

Land and other property

Land devolves to the personal representative in the same way as personal property, and the representative holds it as trustee for the beneficiaries. For land, the Land Title Act transmission rules apply.

Holding property as trustee matters. The executor can manage and deal with the property, but it is held for the beneficiaries and not for the executor's own benefit.

When there is more than one executor

Co-executors are more limited when it comes to land. A disposition of land by only one or some of several joint personal representatives is not valid without court approval.

There is an exception. Where some co-executors renounce or do not join the probate application, the acts of the executors who obtained probate are as valid as if all had acted, and those executors may dispose of land under s. 162(4)(a)-(b). Also, unless the will says otherwise, a power held jointly by two or more trustees may be exercised by the survivors.

Specific powers an executor can use

• Selling a gift for a missing beneficiary: if a beneficiary cannot be found within 12 months, the personal representative may sell the property gifted to them and hold the net proceeds in trust.
• Notice to creditors: the personal representative may publish a notice to creditors and other claimants in the Gazette, setting a deadline of at least 30 days.
• Asking the court for directions: an executor, administrator or trustee may petition the court for its opinion, advice or direction on a question about managing the estate, without starting any other proceeding.

The last of these is useful when you are unsure whether a step is within your powers. Asking first is usually better than guessing.

Limits on an executor's powers and what to do next

An executor's authority is real but bounded. A personal representative must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. There are exceptions, such as consent from the required beneficiaries, and court consent is needed after the 210 days if certain proceedings are under way.

Before distributing property they control, a legal representative must obtain a clearance certificate from the Minister of National Revenue. Distributing without one makes the representative personally liable for the unpaid tax, up to the value of the property distributed.

Finally, an executor can be removed. Any person with an interest in the estate may apply to remove or pass over a personal representative, and the court may do so on listed grounds, including incapacity, a conviction for an offence involving dishonesty, undischarged bankruptcy, or being unable or unwilling to carry out duties to the point of hampering administration.

• Confirm whether you have a grant, and what each institution requires without one.
• Check the will for any limits or directions on your powers.
• If there are co-executors, agree who will act, especially on land.
• Do not distribute early without checking the 210-day rule and the clearance certificate.
• If you are unsure, ask a lawyer or consider asking the court for directions.

Frequently asked questions