Who Can Be Administrator When There Is No Will in British Columbia?

When someone dies without a will, there is no named executor to take charge. Families often wonder who is allowed to step in, whether it has to be the oldest child, and what happens if relatives disagree.

British Columbia has a set order of priority for who may apply. This article walks through that order, the special case where there is a will but no executor can act, and the steps an applicant follows.

This article covers the law of British Columbia.

What a grant of administration is

If there is no will, if the will names no executor, or if the named executors cannot or will not act, a person applies for a grant of administration instead of a grant of probate. The grant gives that person, called the administrator, authority to administer the estate.

The application goes to the Supreme Court of British Columbia, and you can apply at any B.C. Supreme Court registry. You do not need a lawyer to apply, although many people want advice when the family situation is complicated.

Who has priority when there is no will

The Wills, Estates and Succession Act (WESA), section 130, sets the order of who may apply. Each group generally has priority over the one below it.

This order comes from the statute. The last category covers any other person the court considers appropriate, which can include the Public Guardian and Trustee if it consents. How the order applies to your family depends on your situation, so it is worth confirming with a lawyer.

Who counts as a spouse

WESA counts as spouses people who were married, or who lived together in a marriage-like relationship for at least 2 years. That matters because the spouse sits first in line. If you were a common-law partner, how long you lived together can affect where you fall in the order.

When there is a will but no executor can act

A related situation is a will where the named executors have died, refuse, or cannot act. Then a person applies for administration with will annexed under WESA section 131. 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.

Two special cases are worth knowing. If a minor is named as the 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. And if the will-maker and a spouse stopped being spouses after the will was made, a gift or appointment to that spouse, including as executor, is revoked, and a later reconciliation does not revive it.

Steps, notice and security

Before applying, the applicant must deliver a Notice of Proposed Application in Relation to Estate in Form P1. With no will, it goes to the intestate successors, or the Attorney General if there are none, and to creditors whose claim exceeds $10 000.

Extra recipients apply in some cases. Notice for a minor also goes to the Public Guardian and Trustee. If a person is mentally incompetent and a committee has been appointed, notice goes to the committee and to the Public Guardian and Trustee. If no committee has been appointed, notice goes to the person and also to the Public Guardian and Trustee. If the deceased was a Nisga'a citizen or a treaty first nation member, notice also goes to the Nisga'a Lisims government or the treaty first nation.

The application cannot be made until at least 21 days after the P1 notice and materials are delivered. In an administration application, the P1 notice must tell recipients they may ask for an order requiring the applicant to provide security, unless the applicant is the Public Guardian and Trustee. An applicant 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.

What to do next

• Confirm there is no will, and search for one carefully before assuming so.
• Work out who is in the priority order and talk to those family members early.
• Consider whether anyone is a minor or mentally incapable, since that changes who must receive notice and whether security is needed.
• Prepare and deliver the Form P1 notice, then allow the 21-day wait.
• Get legal advice if relatives disagree about who should apply, or if the estate has debts or property outside British Columbia.

If the person died before March 31, 2014, the older laws still apply to the estate, so the rules above may not fit.

Frequently asked questions