AFTER DEATH
Contents
After Death
Who's in Charge After Death?
The deceased’s personal representative will be responsible for paying the estate debts and distributing its assets. If there is a will, the will names an executor to carry out these duties. If there is no will, then an administrator must be appointed by the court.
Identification of Personal Representative
If there is a will, the will names the executor. The executor is typically a trusted relative or friend of the will-maker. There may be more than one executor named in the will, or the will might name one executor and an alternate in case that person is unable to act. To identify the executor, first find the will.
Executor
The executor gathers the assets of the estate, pays off the estate debts, and distributes the remaining assets according to the terms of the will.
In most cases the executor applies to the court for a grant of probate: this is a court order confirming that the will is valid and giving the executor authority to gather the estate’s assets and settle the estate’s debts.
If you are named as the executor, you might decide to hire a lawyer to help guide you through the steps. If the estate is small and simple, you might try to act without a lawyer. In that case, there are many resources available to help you understand and perform your duties in being executor. In most cases you will share some of the responsibilities with a lawyer, who can efficiently handle many of the steps under your instructions.
Probate is not always required.
If the other beneficiaries think that there is a problem with the will, or if they think that there is a problem with the executor, they might take their concerns to court. The executor may be called upon to represent the estate, and may have to defend his or her actions.
Administrator
Generally, if there is a will then the personal representative settling the estate is called an “executor”, and if there is no will, then the personal representative settling an intestate estate is called an “administrator.” Grants of administration are made to people who are not named as executors in a will.
Grant of administration without will annexed
A personal representative seeking to settle an intestate estate applies to the court for a “grant of administration without will annexed.” For more about the procedure, click here.
Grant of administration with will annexed
A grant of “letters of administration (with will annexed)” is made in some cases:
- there is a will, but the named executor is unable or unwilling to act, or
- there is a will that names a minor as the sole executor, and the child’s guardian applies for a grant of administration (WESA, s. 134).
For more about the procedure, click here.
Co-Executors and Co-Administrators
Usually there is one personal representative while another person may be named in a will or letters of administration as an alternate executor or administrator. Sometimes, however, there is more than one personal representative, and depending on the terms of the will or grant of administration, they might have equal roles. This can arise when a parent of two children wants to treat them equally and names them both as co-executors in the will, instead of naming one as executor and the other as an alternate.
Although a will might name two (or more) co-executors, one might decide not to act and the other might elect to pursue the grant of probate. In that case, only the one co-executor pursuing the grant would face potential liability in handling the estate (WESA, s. 107):
If an executor does not join an application for a grant of probate or administration with will annexed, the executor is not liable in respect of assets of the estate coming into the hands of a co-executor, an alternative executor or an administrator with will annexed, whether or not power is reserved to the executor to apply for a subsequent representation grant.
A person named as co-executor who elects not to join the other co-executor in pursuing probate might reserve the right to apply later to the court for an estate grant. But once the court approves the final disposition of the estate by the other executor, that disposition is final (WESA, s. 148).
If there is more than one personal representative, disputes could arise between the co-representatives resulting in stalemate or delay in settling the estate. Some options for resolving this stalemate might include:
- renunciation by one representative, or
- the co-personal representatives jointly agreeing to a neutral trust company being appointed to handle the estate, or even
- application to the court to have an executor or trustee removed.
Agent for Executor
Administering an estate involves some legal matters, so you should get a lawyer. The lawyer’s fees will generally be paid by the estate. Certainly if the estate includes real estate, trusts, or foreign assets, or if there could be conflict among the beneficiaries, get a lawyer’s help as soon as possible. Lawyers who help executors administer estates are also called solicitors.
Specifically, the legal work in the administration of an estate involves first locating the will and searching for any wills notices. The lawyer reviews the will and advises the executor whether it is valid and what its terms mean. If the deceased died without a will, the lawyer provides advice about who is the next of kin, who is entitled to apply to the court for letters of administration, and who is eligible to inherit.
The lawyer can also deal with advertising for creditors. Legal advice will be important if any claims are disputed or there is any conflict between the creditors or beneficiaries.
The lawyer also conducts title searches for any personal property that may have been registered in the Personal Property Security Registry, and any real property owned by the will-maker registered in the Land Title Office. The lawyer will advise as to the title to these assets.
In addition to the legal tasks, a lawyer can also do some (or all) of the executor’s work. As executor you can decide whether you want to do all the executor’s work or you want a lawyer to help do part (or all) of it. A lawyer will need to gather and review a lot of documents about the deceased’s assets, liabilities, and relationships. You may be able to save time and expense by gathering these documents to provide to a lawyer:
- the original will and any codicils (amendments) you have found;
- grant of probate (if it has been issued, give the lawyer a copy certified by the court) or any foreign grants of probate that need to be submitted for resealing, or any ancillary grant (if applicable);
- any instructions about funeral arrangements or dealing with assets after the death of the deceased;
- the deceased's birth, marriage, and death certificates, and social insurance number;
- copies of any marriage agreement, separation agreement, divorce decrees and maintenance orders, if applicable;
- a list of banks or financial institutions where the deceased may have had accounts, safety deposit boxes, RRSPs, TFSAs, or other investments;
- names of any financial advisors, planners, or accountants the deceased consulted;
- bank books, cheque books, and financial statements or documents, up to the time of death;
- details of any bonds, stocks, and securities owned by the deceased;
- a list of real estate owned by the deceased, with the addresses and copies of the titles, if available, together with approximate values;
- details of any motor vehicles, boats, or large equipment owned by the deceased, including model, year, and registration numbers;
- life insurance policies, if applicable;
- copies of buy-sell agreements, partnership agreements, leases, employment contracts etc., if applicable;
- copies of the financial statements and particulars of any businesses or private companies in which the deceased held an interest, if applicable;
- list of contents of the deceased’s safety deposit box, if applicable;
- details of any digital assets (such as Bitcoin or loyalty rewards) or online accounts, preferably with account passwords;
- details of any other assets not listed above;
- a list of liabilities of the deceased, including funeral expenses, as detailed and complete as possible, together with approximate amounts;
- previous years’ income tax returns, preferably going back 7 years;
- an outline of the deceased's family tree, with relatives' names, ages, occupations, and present addresses, and
- a list of names of people who had significant relationships with the deceased who may be listed in the will.
Based on the information you provide, the lawyer will prepare affidavits and other court documents, including an inventory of the deceased’s assets and liabilities. These documents must be filed with the court as part of the application for a grant of probate. The lawyer will have you sign documents and then will file them in the Probate Registry of the Supreme Court. If necessary, the lawyer may appear in Supreme Court Chambers for a hearing associated with the application.
After the grant of probate is received, the lawyer prepares the documents necessary to transfer the deceased’s assets to you as executor. The lawyer ensures that the documents are properly executed, and then files them with transfer agents (in the case of securities) and the Land Title Office (in the case of real property).
Once the assets are in your name, you may then transfer them to the beneficiaries or the next of kin, or sell them as the case may be. The lawyer prepares the documents for the transfer of real property, ensures they are properly executed, and files them for registration in the Land Title Office.
The lawyer assists you in preparing your accounts and prepares releases for the beneficiaries or next of kin to execute.
If it is necessary to pass your accounts, the lawyer prepares and files the necessary affidavits and court documents in the Supreme Court Registry, then attends in Supreme Court Chambers and at the hearing before the registrar.
You might decide not to hire a lawyer if the estate is simple and there are no disputes. The Supreme Court of BC has posted online resources to help you with a proceeding in court:
Keep in mind that it is usual to get a lawyer to assist with most estates. Even simple estates can involve complicated processes and legal forms.
Certainly if there is any uncertainty or dispute, you should get legal advice as soon as possible.
Public Guardian and Trustee
The duties and mandate of the Public Guardian and Trustee (“PG&T”) are set out in the Public Guardian and Trustee Act (R.S.B.S. 1996, c. 383):
- Protect the legal and financial interests of children under the age of 19 years;
- Protect the legal, financial and in some cases personal and health care interests of adults who require assistance in decision making.
The PG&T also provides estate services:
- The PG&T might be appointed to administer an intestate estate (WESA, s. 130);
- The PG&T might administer the estate of a missing person;
- The PG&T might be named as a will’s executor;
- The PG&T is eligible to apply for an estate grant if the named executor is unable or unwilling to act (WESA, s. 131(c)); or
- The PG&T could hold assets for a named beneficiary in trust, either because the gift is unclaimed (WESA, s. 147) or because the beneficiary is a minor or and adult incapable of managing his or her affairs.
The PG&T might also become a party to an estate grant as the representative of a minor or of an adult who has been declared incapable of handling his or her financial and legal affairs but has no other legal guardian. In the course of settling an estate there may be several applications to the court, and if any applications affect minors or incapable adults, the PG&T must have notice.
For example, the PG&T must be given notice of these applications, if any of the other beneficiaries entitled to a share in the estate is a minor or incapable adult:
- a notice by a surviving spouse exercising a right to the spousal home (WESA, s. 29(1)(c)), or
- an application for variation of a will (WESA, s. 61(1)).
Deciding Whether to Act
Executors face risks and could be personally liable if they make mistakes:
- if they distribute estate assets to the beneficiaries before all taxes are paid;
- if they distribute assets to beneficiaries while other beneficiaries or creditors still have unresolved claims to those assets; or
- if they distribute assets to beneficiaries without making adequate efforts to discover or notify other possible beneficiaries or creditors.
Settling an estate may be difficult and stressful. If you find it too much to handle yourself, you can get a lawyer or a trust company to help you, or to do it for you. Those expenses would be paid out of the estate. See Agent for Executor for the services a lawyer would provide.
Duties of a Personal Representative
Generally the personal representative gathers the estate assets, pays the creditors, and distributes the remaining assets to the beneficiaries. Depending on how complicated an estate is, there may be a lot of steps involved in that process. Specific steps in settling one estate might not apply to another estate. A lawyer can help set out the right steps in each case.
If you are doing this yourself without the assistance of a lawyer, consult this Checklist to help you organize your duties and keep track of what you have already done.
Renunciation
If you have been named in a will as executor but you are unable or unwilling to act, and haven’t started dealing with any of the estate assets, you can renounce your appointment as if it had never been made (WESA, s. 104). To renounce your appointment as executor, file Form P17: Notice of Renunciation.
If you have started dealing with assets, you are legally bound to continue, and can only be relieved of the task by a court order discharging you (WESA, s. 157) or an order removing you (WESA, s. 158).
If the documents required for an estate grant have not already been filed, you will also need to file them with your renunciation (Rule 25-1(4)). Your appointment as executor may be deemed to have been renounced if one of the beneficiaries or a party interested in the will wants you to apply for probate and you fail to do so. If that party files a citation (Form P32) to force you to seek probate and you fail to do so within six months, then you may be deemed to have renounced your appointment as executor (Rule 25-11(5)).
Reserving the Right to Apply for Probate
If there is more than one executor named, but only one co-executor applies to the court for the estate grant, then that grant must reserve the right of the other co-executor to apply for probate at a later time.
(8) A grant of probate issued on an application for an estate grant brought by one or more, but not all, co-executors must reserve the right of a co-executor who does not join in the application to apply at a later time unless that co-executor has renounced executorship (Supreme Court Civil Rules, Part 25 (“Probate Rules”), Rule 25-4(8))
A co-executor who doesn’t seek a probate grant might formally renounce executorship (WESA, s. 104).
If a co-executor has not renounced executorship, but the probate is granted to the other co-executor who completes probate, the reserved right expires when the probate is finalized by the court (WESA, s. 148).
