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: @@
-{{REVIEWEDPLS | reviewer = [[Helen Low|Helen Low, QC]]|date= January 2016}}{{Being an Executor TOC}}
+{{REVIEWEDPLS | reviewer = [[Stephen Hsia|Stephen Hsia]]|date= March 2019}}{{Being an Executor TOC}}
-[[File:beinganexecutor-contents5.png|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.flickr.com</span>]]As the executor, you may need to '''probate''' the will in order to distribute the estate.
+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.
-== What is probate? ==
+==The probate procedure==
-In the probate process, you submit special forms and the original will to court. 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.
+[[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.
-The probate procedure involves several steps and considerable detail. Many court forms and other documents must be filed in 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.
-{{PLSTipsbox
+'''If your application is rejected''', the registry staff will tell you the reason. You can correct the problem and re-apply.
-| text = You can download the court forms required for probating a will from the Ministry of Justice website at [http://www.ag.gov.bc.ca/courts/other/supreme/2010SupRules/info/index_probate.htm www.ag.gov.bc.ca/courts]. If the form does not open on your computer, try '''saving the form''' to your computer and opening it with [https://get.adobe.com/reader/ Adobe Acrobat].
+Once you’re granted probate, you can proceed with the remaining steps to administer the estate.
-}}
-== How do you start the probate process? ==
+== You must notify certain people that you intend to apply for probate ==
-You must notify several people that you intend to apply for probate. To do so, complete a copy of the [http://www.ag.gov.bc.ca/courts/forms/probate/P1.pdf court form P1, Notice of Proposed Application in Relation to Estate]. Together with a copy of the will, mail or deliver the court form to:
+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 person named in the will as executor or alternate executor.
-* each beneficiary named in the will,
+* Each beneficiary named in the will.
-* each person who is entitled to apply to vary the will under the ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'' (that is, the will-maker’s spouse, common-law spouse, and children), and
+* 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 (there is an extensive list in 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 ''[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'''.
 You must deliver this notice at least 21 days before submitting the probate application to court.
-== What documents are required for probate? ==
+{{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}}
-A typical probate application will involve these documents, which you must file with the Probate Registry:
+== You need to file probate documents with the registry ==
-* '''A Submission for Estate Grant in [http://www.ag.gov.bc.ca/courts/forms/probate/P2.pdf Form P2]:''' This form gives details about your application for probate.
+A typical probate application will include these documents, which you must file with the probate registry:
-* '''An Affidavit of the Applicant in [http://www.ag.gov.bc.ca/courts/forms/probate/P3.pdf Form P3] or [http://www.ag.gov.bc.ca/courts/forms/probate/P4.pdf P4]:''' This form identifies you and your relationship to the will-maker.
+* '''A submission for estate grant (Form P2)''': This form gives details about your application for probate.
-* '''Affidavits of Delivery, in [http://www.ag.gov.bc.ca/courts/forms/probate/P9.pdf Form P9]:''' These affidavits confirm that notice of the application was delivered to all persons to whom notice must be given.
+* '''An affidavit of the applicant (Form P3 or P4)''': This form identifies you and your relationship to the will-maker.
-* '''An Affidavit of Assets and Liabilities in [http://www.ag.gov.bc.ca/courts/forms/probate/P10.pdf Form P10] or [http://www.ag.gov.bc.ca/courts/forms/probate/P11.pdf P11]:''' This form sets out all the will-maker’s assets and liabilities that pass to you under the will.
+* '''Affidavits of delivery (Form P9)''': These affidavits confirm that notice of the application was delivered to everyone who you had to give notice to.
-* '''The originally-signed version of the will''', or if the original does not exist, a copy of the will.
+* '''An affidavit of assets and liabilities (Form P10 or P11)''': This form sets out all the will-maker’s estate assets and liabilities.
-* '''Two copies of a Certificate of Wills Search''', obtained by [http://www2.gov.bc.ca/assets/gov/health/forms/vital-statistics/vsa532_fill.pdf doing a search] of the [http://www2.gov.bc.ca/gov/content/life-events/death-and-bereavement/wills-registry Wills Registry] maintained by the provincial government’s Vital Statistics Agency.
+* '''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.
-* '''Payment of the court filing fee:''' Currently $214, unless the estate has a value of less than $25,000, in which case there is no fee payable.
+* '''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.
+{{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].
+}}
-Additional documents are required to deal with issues relating to the will, dispensing with notice, the executor renouncing their executorship, and various unusual applications.
+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 closest Probate Registry to where you are located, contact Enquiry BC:
+'''To find the probate registry closest to you''', contact Enquiry BC:
 : Lower Mainland: 604-660-2421
 : Toll-free: 1-800-663-7867
 {{PLSTipsbox
-| text = If there is 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.
+| 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.
 }}
-=== Do you need witnesses when you sign the forms? ===
-You will need to sign some of the documents 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. When you sign, it means you are swearing or affirming that the information you are providing in the document is true.
+=== 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.
-=== What assets and liabilities do you need to list? ===
+== 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.
-The Affidavit of Assets and Liabilities in [http://www.ag.gov.bc.ca/courts/forms/probate/P10.pdf Form P10] or [http://www.ag.gov.bc.ca/courts/forms/probate/P11.pdf P11], one of the probate forms, includes a statement that has three parts:
+'''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.
-* '''Part I, Real property:''' List the will-maker’s home and any other land.
-* '''Part II, Personal property:''' List the will-maker’s personal property, such as cash, jewelry, furniture, vehicle, and the Canada Pension Plan death benefit.
-* '''Part III, Liabilities:''' List any debts or amounts owing.
-Do not 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. These assets do not form part of the estate.
+Parts I and II ask the '''value of the assets at death'''. Provide a value, or if the asset has no value, put “nil.”
-Parts I and II ask the value of the assets at death. Provide a value, or if the asset has no value, put nil or none.
+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.
-If you cannot obtain information about all of the deceased’s assets you can still apply for probate. However, as you find new assets, you will need to prepare a new affidavit and pay further probate fees based on their value.
 {{PLSTipsbox
-| text = To help determine the market value of the person’s home, refer to BC Assessment’s property assessment information at [http://evaluebc.bcassessment.ca evaluebc.bcassessment.ca].
+| 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].
 }}
-== How long will your application take? ==
+== 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.
-The time frame for the Probate Registry to review and approve probate applications can vary considerably, but generally the review process takes two to three months.
-Once the application is reviewed, the Probate Registry will assess the probate fees that are payable.
-== What are the probate fees? ==
-Probate fees are based on the gross value of the estate assets that were located in British Columbia when the will-maker died.
 {| class="wikitable"
-!Estate value
-!Probate fee
 |-
-|$0 to $25,000
+! Estate value !! Probate fee
-|0
 |-
-|$25,000 to $50,000
+| $0 to $25,000 || none
-|$6 for every $1,000 (or part of $1,000)
 |-
-|$50,000 or more
+| For the first $25,000 to $50,000 || $6 for every $1,000
-|$14 for every $1,000 (or part of $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 $214.
+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.
-== What if your probate application is rejected? ==
-If your application is rejected, the Registry staff will tell you the reason. You can correct the problem and re-apply.
-Once you are granted probate, you can proceed with the remaining steps in administering the estate.
 {{Being an Executor Navbox}}