How to Pay Probate Fees When the Estate Has No Cash in BC

Many estates are mostly a house. The money to pay the probate fee is not in an account you can reach yet, and the grant you need to reach the funds cannot issue until the fee is paid. It is a common and frustrating catch.

This article explains what the fee is based on, when it is due, and the questions to ask before you decide how to fund it. This article does not set out payment methods, because they depend on the registry and your situation.

This article covers the law of British Columbia.

When the fee is due

The probate fee must be paid to the government before the grant (or resealing) issues. The registrar issues the estate grant once all fees payable in relation to the filing, including all applicable probate fees, have been paid. The registrar may also refuse approval unless all probate fees have been paid.

The personal representative pays on behalf of the estate, but only in a representative capacity, not personally. The fee is in addition to the court fees to start the proceeding and to file documents in it.

How much to plan for

When the estate exceeds $25,000, the fee is $6 for every $1,000 (or part of $1,000) between $25,000 and $50,000, plus $14 for every $1,000 (or part of $1,000) above $50,000. No probate fee is payable if the value of the estate does not go over the starting amount in that formula.

On a $1,000,000 estate, adding the $200 court filing fee brings the total to $13,650. The $200 is a separate court fee, and it is not payable for a grant on an estate that does not go over that same starting amount. Confirm both amounts with the registry before you budget, as the court fee schedule can be amended.

Check what really counts toward the fee

The fee is based on the gross value of the estate, and debts and mortgages are not deducted in that definition. A house with a large mortgage is therefore generally measured at its gross value. How property is valued for this purpose is something to confirm with the registry or a lawyer.

Not everything you think of as the deceased's belongings counts. Review each asset before you calculate the fee:

• Assets that pass directly to someone else, such as by right of survivorship or a valid beneficiary designation, are outside the definition.
• Land held jointly with a right of survivorship passes to the survivor rather than to the personal representative.
• Real estate and tangible property outside British Columbia are not counted.
• Intangible property such as bank accounts and securities outside British Columbia counts only if the deceased was ordinarily resident in British Columbia immediately before death.

If the estate is mostly a house, the fee base may be simple. If part of it passes outside the estate, the fee may be lower than you expect.

Questions to raise before you pay

This article does not set out accepted payment methods or any arrangement for an estate with no cash, because those details depend on the registry. Ask the registry directly and consider these questions with a lawyer or your financial institution:

• Can I pay the fee in the way the registry accepts, and when exactly is it due in my application?
• Is there a source of funds that is not tied up, such as an account in my own name that I would repay from the estate later?
• Will the other beneficiaries agree to contribute, and how will that be recorded?
• If I advance money, how and when am I repaid from the estate?

If you pay out of your own pocket, keep the receipts. Separately from any money you advance, an executor may be entitled to a fair and reasonable allowance for care, pains, trouble and time spent, not exceeding 5% of the gross aggregate value of the estate's assets, allowed by the Supreme Court or by a registrar if directed by the court. That allowance is for the executor's work, and it is allowed when the accounts are passed, in addition to other allowances for expenses actually incurred. These rules do not apply where the allowance is set by the instrument creating the trust, such as a will that fixes the executor's compensation. Whether and how a particular advance is repaid depends on the facts, so confirm it before you commit funds.

What to do next

• List every asset and mark which ones pass to the personal representative and which pass directly to someone else.
• Estimate the gross value of the estate and work out the fee using the bands above.
• Phone the registry to confirm the current fee amounts and how payment is accepted.
• Talk to the beneficiaries before advancing any funds.
• Keep a written record of any money you pay and the reason for it.

You do not need a lawyer to apply for a grant, and an application can be made at any BC Supreme Court registry. A lawyer can still help if the funding is awkward. Any legal fees paid from the estate must be approved by the court or by the heirs.

Frequently asked questions