What Can an Executor Do Before Probate Is Granted in British Columbia?

If you have been named as an executor, you may feel stuck between the death and the court's grant of probate. Bills keep arriving, family members ask questions, and you are not sure what you are allowed to do yet.

The short answer is that you are not powerless, but your authority has limits. This article explains what you can generally start doing, what usually has to wait for the grant, and what to do when you are unsure about a step.

This article covers the law of British Columbia.

Your authority starts earlier than the grant

Under the Wills, Estates and Succession Act (WESA), a deceased person's estate vests in the personal representative once that person takes office or is appointed. Until then, it vests in the court if there is no executor or no will.

Once you hold office, you have the same authority over the estate as the deceased would have had, subject to the will and to other laws. That is why an executor can begin the early work of the estate without waiting for the court.

Having authority in law is not always the same as being able to use it in practice. Banks, land registries and other institutions often want to see a grant before they deal with you, which is where the practical limits come in.

Early steps you can take before a grant

Several of the first tasks are really preparation for the probate application itself. Doing them well saves time later.

• Make a diligent search and inquiry for the deceased's property and liabilities. Anyone applying for a grant must do this.
• List all assets and debts, and keep track of valid debts that need to be paid. These are among an executor's basic duties.
• Submit an Application for Search of Wills Notice, even if you believe you already hold the original last will.
• Deliver a notice of proposed application (Form P1) to the people the Supreme Court Civil Rules require, and then wait at least 21 days before applying.

Who receives the Form P1 notice depends on whether there is a will. With a will, it goes to the living named executors and alternate executors and to each beneficiary under the will. Without a will, it goes to the intestate successors and to creditors whose claim exceeds $10 000.

When you apply, you will also need two certificates showing the results of the wills notice search, along with an affidavit of assets and liabilities. That affidavit is Form P10 for a domiciled estate or Form P11 for a non-domiciled estate. Gathering the information for it is a natural use of the waiting period.

What still needs a grant

A grant of probate or administration gives the personal representative exclusive authority to administer the estate. In practice, three areas show where the grant matters most.

For land, the Land Title Act process usually involves court-issued documents, so confirm the current requirements before you try to transfer or sell any property. If there are several executors, a disposition of land by only one or some of them is not valid without court approval, though there is an exception where some co-executors have renounced or did not join the application.

Distribution, debts and tax come later

The 210-day bar has exceptions. With a will, the estate may be distributed earlier if all beneficiaries with an interest, and everyone who could bring a wills-variation claim, consent. With no will, all intestate successors entitled to a share must consent. Even after the 210 days, distribution needs court consent if a proceeding is under way that may affect it.

Distributing too early or without checking debts can be costly. An executor who distributes the estate while debts remain unpaid may be held personally liable for them.

Tax adds a further step. Before distributing property they control, a legal representative must obtain a clearance certificate from the Minister of National Revenue. A representative who distributes without one is personally liable for the unpaid tax, up to the value of the property distributed. The Canada Revenue Agency says to request the certificate only after all returns are filed, assessments are received and all amounts are paid or secured.

When you are unsure: ask the court, then plan your next steps

If a step is uncertain, you do not have to guess. 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. That option is worth raising with a lawyer if the answer is unclear and the risk is real.

• Locate the original will and keep it safe.
• Confirm that you are willing to act, or consider whether to renounce.
• Begin a written list of assets and debts.
• Submit the Application for Search of Wills Notice.
• Prepare and deliver the Form P1 notice, and note the date of delivery.
• Do not distribute anything, and do not move land, until you have confirmed what is required.
• Keep records of every step and every expense.

Frequently asked questions