Order of Priority to Administer an Intestate Estate in BC

When someone dies without a will, no executor is named, so someone has to apply to the court to be appointed administrator. Often several relatives are willing, and sometimes they do not agree on who should act.

This article explains the order of priority in British Columbia, what happens when people disagree, and what steps the application involves. The ranking below the spouse and children should be confirmed against the full Act with a lawyer.

This article covers the law of British Columbia.

What an administrator does and when the role starts

An administrator is the personal representative of an estate where there is no will. They gather the assets, pay the debts and distribute what is left to the people entitled.

A personal representative of an intestate estate is conclusively deemed to be the personal representative from the date of death. That is why it matters to settle who will act, and to act carefully.

The role comes with limits on the family home. Without the surviving spouse's written consent, the personal representative must not dispose of the spousal home during the 180 days after the representation grant is issued, or any extended period. The only exception is where other assets cannot pay debts and a mortgage or charge on the home would not raise enough.

If a minor is entitled to a share of the estate and no trust exists, the personal representative pays that share to the Public Guardian and Trustee in trust for the minor.

The order of priority

The first priority to be granted administration on an intestacy 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.

Who counts as a spouse follows the Act's definition. Generally that means a married partner, or a partner in a marriage-like relationship of at least 2 years. Spousal status ends if married spouses separate, or if common-law partners end the relationship. However, spouses are not treated as separated if, within one year after separating, they resume living together primarily to reconcile and live together for periods totalling at least 90 days.

When people disagree

Among the children, the Act builds in a majority test: a child applies with the consent of a majority of the children. This means one child cannot simply claim the role over the objections of most of the others.

Despite the priority rules, the court may appoint as administrator any person it considers appropriate, in special circumstances. If relatives cannot agree and the ranking does not settle it, a lawyer can explain whether a court application makes sense.

An interested person can apply to the court for an order requiring the administrator to provide security. No security for administering an estate has to be provided by an applicant, with two exceptions: a minor or incapable person with no nominee is interested in the estate, or the court requires security on an interested person's application. If security is required, the court may accept any form or amount, or may restrict the administrator's powers without prior court or Public Guardian and Trustee approval.

If no one is willing or able

If no one is willing or able to be administrator, the Public Guardian and Trustee may administer the estate. It may refuse if the cost of administering would exceed the value of the estate's assets.

The court may appoint the Public Guardian and Trustee as administrator only with its prior written consent, or if the Public Guardian and Trustee applies.

What to do next

An application for a grant of administration can be made at any B.C. Supreme Court registry. It requires Form P2 (Submission for estate grant) and a wills notice search.

The first step is a notice of proposed application in Form P1. The applicant may not apply until at least 21 days after delivering it. On an intestacy, the notice goes to each intestate successor, and to each creditor with a claim over $10,000, among others.

The applicant must swear that a diligent search for a will was made, including electronic devices and third-party repositories. 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. The affidavit of assets and liabilities may be filed later.

• Search thoroughly for a will, including electronic devices.
• Talk with the other relatives about who will act, and put agreements in writing.
• Work out who has priority under the Act.
• Prepare to deliver the P1 notice to everyone entitled.
• Get legal advice early if there is a dispute.

Frequently asked questions