Probate Fees on Gross or Net Estate Value in British Columbia

If you are an executor in British Columbia, one of the first questions is how much the probate fee will be. Many people assume it is charged on what is left after debts are paid. That assumption can lead to a budgeting surprise.

This article explains how the fee base is defined, which assets count and which do not, and what to do if the numbers change after the grant. Every estate is different, so a lawyer can confirm how the rules apply to yours.

This article covers the law of British Columbia.

The short answer: gross value

The Probate Fee Act defines the value of the estate as the gross value, as sworn in a Statement of Assets, Liabilities and Distribution that is exhibited to the affidavit leading to the grant. The Act contains no deduction for debts or mortgages in that definition.

The statement does list liabilities, but listing a debt is not the same as subtracting it from the fee base. Because the registry's practice can matter here, it is sensible to confirm with the court registry how your statement will be treated before you rely on a figure.

Which assets count toward the fee

The fee base is limited to property that passes to the personal representative at the date of death. Within that, what counts depends on the type of asset and where the person lived.

Real estate in another province or country is therefore outside the fee base.

What stays outside the fee base

Assets that pass directly to someone else at death, for example by right of survivorship or a valid beneficiary designation, fall outside the statutory definition because they do not pass to the personal representative. Each asset should be checked against the definition one by one.

• Land held jointly with a right of survivorship passes to the survivor rather than the personal representative.
• If joint owners cannot be shown to have survived each other, or die at the same time, each is treated as holding as a tenant in common, so a share can pass through the estate.
• A joint holding that is only a tenancy in common passes to the personal representative.
• If a beneficiary designation is invalid, or the named person has died, the benefit may be payable to the estate and so form part of the fee base.

How the amount is worked out

No probate fee is payable if the estate does not exceed $25,000. Above that, the fee is $6 for every $1,000 (or part of $1,000) over $25,000 up to $50,000, plus $14 for every $1,000 (or part) over $50,000.

For example, an estate of $500,000 owes a probate fee of $6,450, and an estate of exactly $50,000 owes $150. A part of $1,000 is charged as a full $1,000, so $1,000,500 is charged as $1,001,000. On a $1,000,000 estate the fee is $13,450, and with the $200 court filing fee the total is $13,650. The filing fee is a separate court fee, and it is not payable where the estate does not exceed $25,000.

There are also narrow exceptions. No probate fee is payable on a grant de bonis non, a cessate grant or a double probate.

Getting it wrong and fixing it

The fee must be paid before the grant issues, and the personal representative pays it on behalf of the estate in that representative capacity, not personally. The registrar issues the grant once all fees payable, including probate fees, have been paid.

If you later learn of an undisclosed asset, or that a value in the statement needs to be revised, you must disclose it to the court and pay the difference between the fee paid and the greater fee that would have been payable. You must also promptly file a supplemental affidavit and pay all related fees.

What to do next

• List every asset and note how title is held: sole name, joint with survivorship, or tenants in common.
• Check each account and plan for a named beneficiary, and whether that person is alive.
• Note which assets are outside British Columbia, and whether the person was ordinarily resident in BC.
• Use gross values, not values after debts, when estimating the fee.
• Keep records so any later correction is simple.
• Ask a lawyer to confirm the fee base if title or residence is unclear.

Frequently asked questions