WHERE TO START

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Using this Wikibook

This wikibook will help you understand the steps involved in being an executor and probating a will. It is not intended to be a substitute for legal advice. As an executor you will be expected to perform some duties. You may be paid for your work, and you will be reimbursed for ordinary expenses from the estate. This wikibook answers your questions about all of those things, and more.

This wikibook refers to many laws, forms, websites, and phone numbers. Sometimes those things change. References in this text were current at November15, 2014.


Basics of Estate Law in BC

In general terms, when a person dies in BC, the deceased’s personal representative gathers up the deceased’s assets, pays the deceased’s debts, and distributes the rest of the deceased’s estate to the beneficiaries. For small estates that may be fairly simple. For most estates it can be complicated, so a lawyer can help.

Where there is a will, the personal representative is an executor. The executor is a trustee, bound to act for the good of the estate, even though the executor may also be a beneficiary or have a personal interest in the estate assets. Where there is no will, the personal representative will need to follow the law to distribute the estate by rules of intestate succession.


What Is an Executor

The executor is the person who 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, which is a court order confirming that the will is valid and the executor has the authority to gather the assets and settle the estate’s debts.

Probate is not required in every case. For more, click here.

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.


Who Is the Executor?

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.

If there is no will, then an administrator must be appointed by the court.

If there is a will but it is invalid for some reason, than an administrator must be appointed by the court, and the court will issue letters of administration (with will annexed).

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 uncomplicated, 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.


Finding the Will

The will may be in the deceased’s home, in a safety deposit box, or at the office of the lawyer who drafted the will. If you need to look in a safety deposit box you will need a key to the box and a copy of the death certificate.[1] If the will is there and it names you as executor, you can then remove the will and list the other contents of the safety deposit box. Try to find out if the deceased made a later will. Search for a Wills Notice filed at the Vital Statistics Agency. If there is no will, or there is a will but it’s not valid, then the person who wants to settle the estate assets will need to apply to the court.

Wills Notice

A person who makes a will in BC may file a notice with the Vital Statistics Agency in Victoria. This notice says where the will is kept. If the will-maker later moves that will or revokes it, a new wills notice might be filed. The current cost to file a wills notice is $17.00.

To search for a wills notice you will need a copy of the death certificate (a lawyer can do this search online without the death certificate). The current cost to search for a wills notice is $20.00 (same-day service is available for an additional $33.00). The Vital Statistics Agency will give you a Certificate of Wills Search. Keep this certificate for when you apply to the court for probate. Rule 25-3(2)(c) says that in applying for probate you need to provide the court with two copies of the certificate.

Caution: because a person who makes a will is not required to file a notice with the Vital Statistics Agency, the report from the Agency does not prove that there is no later will.

A Sample Application for Search of Wills Notice

File:Example.jpg


If There Is No Will

If you are dealing with a matter involving a person who is missing but not definitely deceased, and owns property that must be dealt with urgently, it may fall under the Estates of Missing Persons Act where the court will appoint the Public Guardian and Trustee, or another person who applies, as curator of the estate.

Once the person is determined to have died and a representation grant is issued, the interim curator is replaced by the personal representative named in that grant (Estates of Missing Persons Act, s. 9).

Estate Administration

If there is no will, a person who is in a position to handle the deceased’s assets may apply to the court for a representation grant. The person who applies is typically a spouse, relative or friend of the deceased, and may be applying with the consent of other potential beneficiaries.

In some cases the court might insist that the person applying get an insurance bond or provide some security. This may happen if one of the parties is not capable of handling his or her affairs and does not have a representative, or if one of the parties asks the court to order security. The court might insist that the person applying get an insurance bond and provide proof of this bond to the court. This bond protects the estate beneficiaries in case the personal representative mishandles the estate assets.


Intestate Succession

If there is no will, the estate will be divided according to the rules for intestate succession set out in Part 3 of WESA, “When a Person Dies Without a Will.”

Order of Intestate Succession

  • If there is a spouse but no descendants (children), the spouse takes the estate;
  • If there is a spouse and children who are all children of that spouse and the deceased, the spouse gets the first $300,000, then half the residue, and the other half of the residue goes to the children;
  • If there is a spouse and children who are not all children of that spouse and the deceased, the spouse gets the first $150,000, then half the residue, and the other half of the residue goes to the children;
  • If there is no spouse but there are children, they inherit the estate;
  • If there is no spouse and no children, the estate goes to the following relatives in this order:
    • the deceased’s parents (also called “ascendants”);
    • if there are no living parents, to the parents’ descendants (the deceased’s siblings, also called “collaterals”);
    • if there are no living siblings, to the deceased’s living grandparents or their descendants (the deceased’s first cousins);
    • failing that, to the deceased’s great-grandparents and their descendants (the deceased’s second cousins or cousins removed ).

If there is no surviving relative, then the estate is forfeited to the province of BC under the Escheat Act.

Where there is a surviving spouse, that surviving spouse may be able to keep the spousal home if it is valued at equal to or less than the amount the spouse is owed from the estate (WESA, s. 26), or if the court orders it (WESA, s. 33). The spouse must give notice to the personal representative of the claim.


Notice of Application for Spousal Home

The surviving spouse must deliver a notice to the personal representative. The notice of an application for a claim to the spousal home must be in Form P42 if there is already a proceeding in the matter; if there is no proceeding already, then the spouse should apply by requisition in P43, according to Rule 25-4(2).

Notice must be delivered within 180 days of when the representation grant was issued.

If no notice is delivered, then the personal representative can sell the home.

If there are disputes, or if you are uncertain about entitlement (for example, as to who is a “spouse” or whether any particular relative has a claim or not), be sure to get legal advice before disposing of assets.


Partial Intestacy

If there is a will, but part of it is invalid, unclear, or inoperable, the assets included in that part of the will that is invalid would be dealt with according to the rules of intestate succession. For example, where a will is perfectly valid and clear about most assets and who is to inherit them but doesn’t make any provision for the residue of the estate, that residue would be distributed according to the rules of intestacy.

Resources

Online Resources

• See Chapter 10: Legal Overview • The Canadian Bar Association summary Your Duties as Executor is also available as a Dial-A-Law script • The People’s Law School has created a booklet Being an Executor (2014) available through Clicklaw • The B.C. Ministry of Justice courts website provides information and links to laws • Clicklaw has an online resource, I am the Executor or Administrator of An Estate • Heritage Law’s website contains current information • Dial-A-Law: call 604 687-4680 (in Vancouver) or 1-800-565-5297 (toll-free). Dial-A-Law online contains scripts and audio on various estates issues

Legislation

• Escheat Act, R.S.B.C. 1996, c. 120 • Family Law Act, S.B.C. 2011, c. 25 • Trustee Act, R.S.B.C. 1996, c. 464 • Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”)

Regulations and Forms

• Supreme Court Civil Rules, BC Reg. 168/2009 • Probate Forms

References

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  1. [1], WESA, S. 183