Probate vs Administration in BC: What Is the Difference?

After a death, many families are not sure whether there is a valid will, or whether the person named as executor can or will act. The answer decides which kind of court document is needed to deal with the estate.

This article explains the difference between a grant of probate and a grant of administration in British Columbia, who applies in each case, and a few special situations that change the answer.

This article covers the law of British Columbia.

The short answer

Probate is a court-supervised process that checks that a will is real, was made without fraud or undue influence, and is the last will the person made. The court document that certifies this is called a grant of probate.

A grant of administration is the alternative. It is used if there is no will, if the will names no executor, or if the named executors cannot or will not act. It gives the person who receives it, called the administrator, authority to administer the estate.

Once a grant is issued, the personal representative has exclusive authority to administer the estate under the grant's terms. This is why banks and others rely on the grant: a person who pays or transfers estate property to the personal representative before having notice that the grant was revoked is protected from liability, even if the grant was defective.

Side by side

In both cases the court must have proof that the will is valid (or that the person died without one), and proof of the deceased's connection to BC, such as being ordinarily resident or domiciled in the province at death.

Who applies when there is no will

WESA sets an order of priority for an administration application when there is no will. The order is:

• The spouse or the spouse's nominee.
• A child with the consent of a majority of the children, then a nominee of such a child, then a child without majority consent.
• Other intestate successors, with and then without majority consent.
• Last, any other person the court considers appropriate, including the Public Guardian and Trustee with its consent.

If there is a will but no executor can act, the application is called administration with will annexed. The order is a beneficiary who has the consent of beneficiaries holding a majority in interest, then a nominee, then other beneficiaries, then any person the court appoints.

Situations that change the answer

• Former spouses: WESA counts as spouses people who were married or who lived together in a marriage-like relationship for at least 2 years. If the will-maker and spouse stop being spouses after the will is made, a gift or appointment to that spouse, including as executor, is revoked, and a later reconciliation does not revive it. That can leave the will with no executor able to act.
• Executor who declines: a named executor may renounce the appointment, and unless a court orders otherwise, that ends their executorship.
• Minor named as sole executor: the court must grant administration with will annexed to the minor's guardian, or to another suitable person, until the minor reaches 19 years of age.
• Security: an applicant for administration does not have to provide security unless a minor or a mentally incapable person without a nominee is interested in the estate, or the court requires it on application by a person interested in the estate.
• Deaths before March 31, 2014: BC law changed on that date, and estates of people who died earlier still fall under the old laws.

What to do next

• Find out whether a will exists and whether it names an executor who is alive, able and willing to act.
• If the named executor will not act, ask whether they intend to renounce, and get that in writing.
• If there is no will, work out who is first in the priority order and talk to the other family members early.
• Check whether a former spouse was named in the will.
• Speak with a lawyer if the family disagrees, a minor or incapable person is involved, or the will's validity is in doubt.

Where an executor is named but is not moving, a person interested in the estate can serve a citation in Form P32 requiring the executor to apply for probate, and the cited person must respond within 14 days after being served.

Frequently asked questions