What Happens If There Is No Probate in British Columbia?

Some families put probate off, or decide to skip it. Sometimes that works out. Other times an asset gets stuck, and the family learns that a bank, pension office or buyer will not deal with them until a court has issued a grant.

This article explains what can happen without probate in British Columbia, which assets are affected, and what risks to weigh up. It is general information and cannot tell you what will happen in your estate.

This article covers the law of British Columbia.

Probate is not always legally required

No BC statute lists which estates must be probated. In practice, a grant is needed when an organization holding the deceased's assets asks for one. Agencies and financial institutions can require a will to be probated before they accept it and transfer assets to the executor, and each one has its own policy.

The reason is protection. A person who pays or transfers estate property to the personal representative before having notice that the grant was revoked is protected from liability, even if the grant was defective. A grant gives organizations a document to rely on.

Effect on assets and title

The result depends on the asset.

For land in the deceased's sole name, title cannot simply stay in the deceased's name forever if you want to sell or transfer it, so confirm with the LTSA or a lawyer what is needed before you commit to a buyer.

Effect on the executor's authority

A grant gives the personal representative exclusive authority to administer the estate under the grant's terms. Without it, an executor may find that others will not accept their authority, even though the will names them.

Others can also press the issue. A person interested in the estate can serve a citation in Form P32 that requires a named executor to apply for probate, and the cited person must respond within 14 days after being served.

If you do not want the role, a named executor may renounce. Unless a court orders otherwise, that ends their executorship, and an executor who renounces and has not intermeddled in the estate is not liable. If no executor can act, a grant of administration may be used instead.

Tax, creditors and family claims

• Tax: a legal representative who distributes assets without a Canada Revenue Agency clearance certificate, requested on Form TX19, is personally liable for unpaid amounts, up to the value of the assets distributed.
• Creditors: a personal representative may publish a notice in the Gazette giving creditors at least 30 days to present claims, after which unpresented claims are barred against the personal representative.
• Family claims: a spouse or child making a wills variation claim must start it within 180 days from the date the representation grant is issued in British Columbia, and serve the executor within a further 30 days.
• Waiting period: the estate must not be distributed within 210 days after the grant is issued, except by court order or with the consent of all beneficiaries and all persons who could bring a variation claim.

Several of these deadlines are tied to the date the grant is issued. If you delay the application, those protections and claim windows start later too.

What to do next

• List every asset and who holds it, and note which ones pass outside the estate by joint ownership or a beneficiary designation.
• Ask each bank, pension plan and registry what it needs before it will deal with the estate.
• Do not distribute assets until tax clearance and creditor questions are settled.
• If the family disagrees, or someone may challenge the will, get legal advice before acting.
• If you decide to apply, remember that you do not need a lawyer to file.

Frequently asked questions