Difference between revisions of "Probating the Will"

Latest revision as of 22:45, 21 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Hsia in March 2019.

The executor of a will may need to apply to the court to probate the will in order to distribute the estate. If everything is in order, the court issues a grant of probate. The executor can then show a notarized copy of the grant of probate to banks and other asset holders, confirming that the executor has the authority to act for the estate.

The probate procedure

Image via www.www.istockphoto.com

The probate procedure involves several steps and considerable attention to detail. Many documents must be filed with the probate registry of the Supreme Court of BC.

The timeframe for the probate registry to approve probate applications varies, but generally the review process takes two to three months.

If your application is rejected, the registry staff will tell you the reason. You can correct the problem and re-apply. Once you’re granted probate, you can proceed with the remaining steps to administer the estate.

You must notify certain people that you intend to apply for probate

To provide notice, complete a copy of the court form P1, notice of proposed application in relation to estate. (For the probate court forms, see the BC government website). Together with a copy of the will, mail or deliver the court form to:

Each person named in the will as executor or alternate executor.
Each beneficiary named in the will.
The will-maker’s spouse and children (because they are entitled to challenge the will under the Wills, Estates and Succession Act).
Each person who would be entitled to a share in the estate if there had been no will. The Wills, Estates and Succession Act lists the people who are entitled to a share in an estate if someone dies without a will.
If any of the people you’re required to send notice to above is a minor or mentally incapable adult, you need to send notice to the Public Guardian and Trustee.

You must deliver this notice at least 21 days before submitting the probate application to court.

“My wife Eileen named me as executor in her will. She left her estate to me and our children. The only other gift was a ring to her sister Zara. I was confused about whether I had to send her brother Francis notice of the probate application. My lawyer explained that if Eileen had died without a will, under the law, only the kids and I would have been entitled to the estate. So I didn’t have to send Francis notice, even though he was still alive when Eileen died.”
– John, Port Moody

You need to file probate documents with the registry

A typical probate application will include these documents, which you must file with the probate registry:

A submission for estate grant (Form P2): This form gives details about your application for probate.
An affidavit of the applicant (Form P3 or P4): This form identifies you and your relationship to the will-maker.
Affidavits of delivery (Form P9): These affidavits confirm that notice of the application was delivered to everyone who you had to give notice to.
An affidavit of assets and liabilities (Form P10 or P11): This form sets out all the will-maker’s estate assets and liabilities.
The originally signed version of the will. If the original doesn’t exist, you can file a copy of the will. You’ll also need to file evidence that supports that it’s a copy of the valid will. The court may or may not accept the copy as the last valid will of the deceased.
Two copies of a certificate of wills search, and any accompanying wills notices, obtained by doing a search of the Wills Registry.
Payment of the court filing fee: Currently $200, unless the estate has a value of less than $25,000, in which case there is no fee payable.

You can download the court forms required for probating a will from the Ministry of Justice website at gov.bc.ca/court-forms.

Additional documents will be required to deal with: issues relating to the will, dispensing with notice, the executor renouncing their executorship, and various other unusual applications.

To find the probate registry closest to you, contact Enquiry BC:

Lower Mainland: 604-660-2421

Toll-free: 1-800-663-7867

If there’s nothing to list under one of the headings on a form, write nil or none. Blank spaces may suggest that information is missing. This is one of the main reasons forms are rejected.

Signing the probate forms

Image via www.istockphoto.com

When you sign a probate form, it means you’re swearing or affirming that the information you’re providing in the document is true. You’ll need to sign some of the probate forms in front of a lawyer, notary public, or a commissioner for taking affidavits. All court registries have a commissioner for taking affidavits, and some community groups do as well.

Listing assets and liabilities

The affidavit of assets and liabilities includes a statement that has three parts:

Real property (Part I): List the will-maker’s home and any other land or investment properties.
Personal property (Part II): List the will-maker’s personal property, such as cash, jewelry, furniture, vehicle, and the Canada Pension Plan death benefit.
Liabilities (Part III): List any debts or amounts owing. Don’t list any expenses incurred after the deceased died, such as funeral expenses or lawyer’s fees.

Don’t list assets that are owned jointly (such as a house owned in joint tenancy) or that name a specific beneficiary, such as a life insurance policy.

Parts I and II ask the value of the assets at death. Provide a value, or if the asset has no value, put “nil.”

If you can’t get information about all of the deceased’s assets you can still apply for probate. However, you should disclose as much information on the the affidavit of assets and liabilities as possible. There’s a form (Form P18) you can file with the court to compel third parties to give you information about estate assets (for example, the balance of a bank account). Consider speaking to a lawyer who can help you obtain estate information. As you find new assets, you’ll need to prepare a new affidavit and pay further probate fees based on their value.

To help determine the market value of the person’s home, refer to BC Assessment’s property assessment information at bcassessment.ca.

Probate fees are based on the gross value of the estate

Once the application is reviewed, the probate registry will assess the probate fees payable. Probate fees are based on the gross value of the estate assets that were located in British Columbia when the will-maker died. This is the value of estate assets before subtracting debts.

Estate value	Probate fee
$0 to $25,000	none
For the first $25,000 to $50,000	$6 for every $1,000 (or part of $1,000)
For any part of the value $50,000 or more	$14 for every $1,000 (or part of $1,000)

For example, if the gross value of an estate is $125,000, the probate fees will be $1,200. This fee is in addition to the court filing fee of $200.

Being an Executor © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence.

@@ Line 1: / Line 1: @@
-{{Being an Executor TOC}}
+{{REVIEWEDPLS | reviewer = [[Stephen Hsia|Stephen Hsia]]|date= March 2019}}{{Being an Executor TOC}}
+The executor of a will may need to apply to the court to '''probate''' the will in order to distribute the estate. If everything is in order, the court issues a '''grant of probate'''. The executor can then show a notarized copy of the grant of probate to banks and other asset holders, confirming that the executor has the authority to act for the estate.
-Here’s a checklist of general tasks after probate, in order of priority. While being an executor does not have to be difficult, there are lots of details and you need to be organized. The following are some of the things you may have to do.
+==The probate procedure==
+[[File:Being an Executor - Contents5.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.www.istockphoto.com</span>]]
+The probate procedure involves several steps and considerable attention to detail. Many documents must be filed with the probate registry of the Supreme Court of BC.
-==Deal with assets==
+The timeframe for the probate registry to approve probate applications varies, but generally the review process takes two to three months.
-* Close all bank, credit union, trust company accounts the person held. You may want to put all money into one account for the estate.
+'''If your application is rejected''', the registry staff will tell you the reason. You can correct the problem and re-apply.
+Once you’re granted probate, you can proceed with the remaining steps to administer the estate.
-* Send in claim forms for death benefits or pension benefits. This may involve contacting the employer, the union, Canada Pension, Old Age Security, Veterans Affairs.
+== You must notify certain people that you intend to apply for probate ==
+To provide notice, complete a copy of the court form P1, notice of proposed application in relation to estate. (For the probate court forms, see the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/probate-forms BC government website]). Together with a copy of the will, mail or deliver the court form to:
+* Each person named in the will as executor or alternate executor.
+* Each beneficiary named in the will.
+* The will-maker’s spouse and children (because they are entitled to challenge the will under the ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'').
+* Each person who would be entitled to a share in the estate if there had been no will. The ''[https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html#sec20_smooth Wills, Estates and Succession Act]'' lists the people who are entitled to a share in an estate if someone dies without a will.
+* If ''any'' of the people you’re required to send notice to above is a minor or mentally incapable adult, you need to send notice to the '''Public Guardian and Trustee'''.
-* Collect any money coming to the person or the estate including salary and insurance.
+You must deliver this notice at least 21 days before submitting the probate application to court.
-* Apply to transfer assets such as real estate property, a car, bonds and other items with a registered title. Assets of the estate are transferred first to the executor and then to the beneficiary. These steps are often done at the same time. The land title office has the forms for transferring real estate. Autoplan handles transfers of motor vehicles.
+{{PLSStorybox
+| image = [[File:Being_an_Executor_-_John.png|link=]]
+| text      = “My wife Eileen named me as executor in her will. She left her estate to me and our children. The only other gift was a ring to her sister Zara. I was confused about whether I had to send her brother Francis notice of the probate application. My lawyer explained that if Eileen had died without a will, under the law, only the kids and I would have been entitled to the estate. So I didn’t have to send Francis notice, even though he was still alive when Eileen died.” <br/>– John, Port Moody}}
-* Keep records of all income received and any expenses paid. Keep copies of all letters and forms you send.
+== You need to file probate documents with the registry ==
+A typical probate application will include these documents, which you must file with the probate registry:
+* '''A submission for estate grant (Form P2)''': This form gives details about your application for probate.
+* '''An affidavit of the applicant (Form P3 or P4)''': This form identifies you and your relationship to the will-maker.
+* '''Affidavits of delivery (Form P9)''': These affidavits confirm that notice of the application was delivered to everyone who you had to give notice to.
+* '''An affidavit of assets and liabilities (Form P10 or P11)''': This form sets out all the will-maker’s estate assets and liabilities.
+* '''The originally signed version of the will'''. If the original doesn’t exist, you can file a copy of the will. You’ll also need to file evidence that supports that it’s a copy of the valid will. The court may or may not accept the copy as the last valid will of the deceased.
+* '''Two copies of a certificate of wills search''', and any accompanying wills notices, obtained by doing a search of the Wills Registry.
+* '''Payment of the court filing fee''': Currently $200, unless the estate has a value of less than $25,000, in which case there is no fee payable.
-==Pay debts and outstanding expenses==
+{{PLSTipsbox
+| text = You can download the court forms required for probating a will from the Ministry of Justice website at
+[http://gov.bc.ca/court-forms gov.bc.ca/court-forms].
+}}
-* reasonable funeral expenses,<br/>
+Additional documents will be required to deal with: issues relating to the will, dispensing with notice, the executor renouncing their executorship, and various other unusual applications.
-* probate fees and legal costs,<br/>
-* municipal and income taxes, and<br/>
-* all other claims as of the date of death.<br/>
-If the estate does not have enough money to pay all outstanding debts, it is very important to get advice from a lawyer as soon as possible so that you do not become personally liable for the debts.
+'''To find the probate registry closest to you''', contact Enquiry BC:
+: Lower Mainland: 604-660-2421
+: Toll-free: 1-800-663-7867
-==Prepare and file income tax returns==
+{{PLSTipsbox
+| text = If there’s nothing to list under one of the headings on a form, write nil or none. Blank spaces may suggest that information is missing. This is one of the main reasons forms are rejected.
+}}
-You need to file a final income tax return for the person. If the person had assets or income in another country, you may need to file a foreign income tax return as well. Ask Canada Revenue Agency for their booklet ''Preparing Returns for Deceased Persons''. This guide is available online at [http://www.cra-arc.gc.ca www.cra-arc.gc.ca].
+=== Signing the probate forms ===
+[[File:Being an Executor - Contents6.jpg|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]
+When you sign a probate form, it means you’re swearing or affirming that the information you’re providing in the document is true. You’ll need to sign ''some'' of the probate forms in front of a lawyer, notary public, or a commissioner for taking affidavits. All court registries have a commissioner for taking affidavits, and some community groups do as well.
-After the income tax is reported, assessed and paid, apply for a Clearance Certificate. For your own protection, you should have this certificate before you begin to distribute the estate. Call Canada Revenue Agency for information and forms - 1.800.959.2221.
+== Listing assets and liabilities ==
+The affidavit of assets and liabilities includes a statement that has three parts:
+* '''Real property (Part I)''': List the will-maker’s home and any other land or investment properties.
+* '''Personal property (Part II)''': List the will-maker’s personal property, such as cash, jewelry, furniture, vehicle, and the Canada Pension Plan death benefit.
+* '''Liabilities (Part III)''': List any debts or amounts owing. Don’t list any expenses incurred ''after'' the deceased died, such as funeral expenses or lawyer’s fees.
-==Distribute the estate==
+'''Don’t list''' assets that are owned jointly (such as a house owned in joint tenancy) or that name a specific beneficiary, such as a life insurance policy.
-Do not distribute the estate until six months after probate is granted. You do this to make sure that no one is going to challenge the will. If all those who have a claim on the estate sign a form saying they will not contest the will, you can go ahead sooner.
+Parts I and II ask the '''value of the assets at death'''. Provide a value, or if the asset has no value, put “nil.”
-==General tasks==
+If you can’t get information about all of the deceased’s assets you can still apply for probate. However, you should disclose as much information on the the affidavit of assets and liabilities as possible. There’s a form (Form P18) you can file with the court to compel third parties to give you information about estate assets (for example, the balance of a bank account). Consider speaking to a lawyer who can help you obtain estate information. As you find new assets, you’ll need to prepare a new affidavit and pay further probate fees based on their value.
-* Distribute gifts of legacies and gifts of personal bequests to people or organizations named in the Will. Sometimes the person attaches a separate list with the Will that says who should receive particular items.
+{{PLSTipsbox
+| text = To help determine the market value of the person’s home, refer to BC Assessment’s property assessment information at [http://bcassessment.ca bcassessment.ca].
+}}
-* Prepare a final statement of assets, debts, income, expenses and distribution. This is for the beneficiaries to approve and is called “passing of accounts.”
+== Probate fees are based on the gross value of the estate ==
+Once the application is reviewed, the probate registry will assess the '''probate fees''' payable. Probate fees are based on the gross value of the estate assets that were located in British Columbia when the will-maker died. This is the value of estate assets before subtracting debts.
-* If any cash and belongings remain after you distributed the specific gifts, divide the remainder or residue as instructed by the Will. If the Will does not have a residue clause, you must distribute the remainder as if there was no Will. The Probate Guide listed in the next section may help.
+{| class="wikitable"
+|-
+! Estate value !! Probate fee
+|-
+| $0 to $25,000 || none
+|-
+| For the first $25,000 to $50,000 || $6 for every $1,000
+(or part of $1,000)
+|-
+| For any part of the value $50,000 or more || $14 for every $1,000
+(or part of $1,000)
+|}
-* If a beneficiary is a non-resident of Canada, you may need to obtain a clearance certificate from Canada Revenue Agency.
+For example, if the gross value of an estate is $125,000, the probate fees will be $1,200. This fee is in addition to the court filing fee of $200.
-==Manage the trust==
-A trust is a part of your estate that is set aside in your Will for a beneficiary, most often a child. For small or simple estates, the executor is often also the trustee. In larger or more complicated estates, there may be a different trustee, such as a trust company.
-If you are acting as trustee, you are responsible for making sure that all the assets are invested or kept in a safe place, and for filing annual trust tax returns. You are also responsible for making payments to the beneficiary of the trust as directed by the Will. You can get help with these tasks from a lawyer or an accountant. Contact Revenue Canada for a copy of the booklet called “T3 Trust Guide”:<br/>
-.800.959.2221<br/>
-[http://www.cra-arc.gc.ca www.cra-arc.gc.ca]<br/>
-{{REVIEWED | reviewer = [[People's Law School]], 2014}}
 {{Being an Executor Navbox}}