Understanding the Wills Probate Process in British Columbia

November 30, 2015 | Published by

Understanding the Wills Probate Process in BC

Following the instructions in a will isn’t always straightforward. In some cases, a court must decide whether or not a given distribution of assets should be approved. This process, called probate, can be complex and depend on numerous factors. Some probate proceedings may even result in litigation or court-ordered modifications. Here’s what to expect.

From Will to Execution

Wills are documents that detail the nature of different assets included in an estate and provide specifications for their ultimate distribution to named heirs, charities and other entities. When someone dies and leaves a will, however, their belongings don’t automatically go to the intended recipients. Instead, an individual known as an executor executes their wishes by distributing the assets.

The executor’s job includes tasks like investigating potential heirs, ensuring that taxes get paid appropriately, evaluating the validity of any outstanding claims by creditors, filing official forms, arranging for debts on the estate to be paid and actually distributing assets to the beneficiaries, heirs or charities. Although executors temporarily hold the legal title to estate assets, they’re not permitted to use titles or assets for their own benefit unless the will gives them the specific right to do so.

Should the Executor Send the Will to Probate?

Executors also decide whether or not to initiate probate, as the process is not necessary for all wills. Some can simply be executed, but probate may resolve a number of common quandaries, such as when:

  • An entity holding an asset or responsible for its transfer refuses to release it without probate,
  • The will’s validity is formally challenged, or
  • More than one supposedly legitimate copy of the deceased’s will exists.

Applying to Probate a Will

British Columbia requires probate fees for assets that meet certain criteria, and these must be paid before the court will actually determine the validity of the will in question. Assets that are only discovered following probate also have to be reported by the executor to determine their fee obligations.

If an estate’s purported value is at least $25,000, or its assets have been placed in the care of an individual representative who isn’t a beneficiary or someone who held the property with the deceased, fees should be paid. Intangible assets that were owned by deceased BC residents and tangible assets located in the territory are also subject to fees. With regards to intangible assets, the Probate Fee Act maintains that this category includes properties not located in British Columbia.

Probate or Administration?

If there is no will naming an executor, individuals can apply to administer the estate. In such cases, they will need to give advance notice to anyone who might be impacted by their actions, such as creditors or parties that might receive properties. Individuals who held titles to assets in trust for the deceased individual and joint bank account holders are also commonly included in disclosure documents. If the executor can properly administrate the will without probate, they’re also exempted from probate fees.

Is Probate the Final Say?

Once a court decides a will is valid and grants approval, the executor can distribute its assets, but there’s a catch. A deceased individual’s children and spouses retain the right to petition courts to change wills as long as they do so within six months of the probate. As such, many executors wait six months to disburse properties in order to avoid liability and subsequent legal action.

Even when probate and challenges aren’t involved, will execution usually unfolds more smoothly with the assistance of estate professionals. To learn more about this important legal duty and its ramifications, read our other blogs or feel free to contact Vancouver Downtown Notary at 778-819-8553 or email us at [email protected]