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Difference between revisions of "Probating the Will"

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[[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. 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.


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 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.  


==Deal with assets==
{{PLSTipsbox
| 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/ www.ag.gov.bc.ca/courts].
}}


* Close all bank, credit union, trust company accounts the person held. You may want to put all money into one account for the estate.
=== How do I start the probate process? ===
You must notify several people that you intend to apply for probate. To do so, complete a copy of the 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:
* each person named in the will as executor or alternate executor,
* 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
* 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'').


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


* Collect any money coming to the person or the estate including salary and insurance.
=== What documents are required for probate? ===


* 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.
A typical probate application will involve these documents, which you must file with the Probate Registry:
* '''A Submission for Estate Grant in Form P2:''' This form gives details about your application for probate.
* '''An Affidavit of the Applicant in Form P3 or P4:''' This form identifies you and your relationship to the will-maker.
* '''Affidavits of Delivery, in Form P9:''' These affidavits confirm that notice of the application was delivered to all persons to whom notice must be given.
* '''An Affidavit of Assets and Liabilities in Form P10 or P11:''' This form sets out all the will-maker’s assets and liabilities that pass to you under the will.
* '''The originally-signed version of the will''', or if the original does not exist, a copy of the will.
* '''Two copies of a Certificate of Wills Search''', obtained by doing a search of the Wills Registry maintained by the provincial government’s Vital Statistics Agency.
* '''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.


* Keep records of all income received and any expenses paid. Keep copies of all letters and forms you send.
Additional documents are required to deal with issues relating to the will, dispensing with notice, the executor renouncing their executorship, and various unusual applications.


==Pay debts and outstanding expenses==
To find the closest Probate Registry to where you are located, contact Enquiry BC:
: Lower Mainland: 604-660-2421
: Toll-free: 1-800-663-7867


* reasonable funeral expenses,<br/>
{{PLSTipsbox
* probate fees and legal costs,<br/>
| 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.
* 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.
=== Do I need witnesses when I sign the forms? ===


==Prepare and file income tax returns==
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.


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].
=== What assets and liabilities do I need to list? ===


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.
The Affidavit of Assets and Liabilities, one of the probate forms, includes a statement that has three parts:
* '''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.  


==Distribute the estate==
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.


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 or none.  


==General tasks==
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.


* 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://evaluebc.bcassessment.ca evaluebc.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.”
=== How long will my application take? ===


* 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.
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.


* If a beneficiary is a non-resident of Canada, you may need to obtain a clearance certificate from Canada Revenue Agency.
Once the application is reviewed, the Probate Registry will assess the probate fees that are payable.


==Manage the trust==
=== What are the probate fees? ===


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.
Probate fees are based on the gross value of the estate assets that were located in British Columbia when the will-maker died.


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/>
1.800.959.2221<br/>
[http://www.cra-arc.gc.ca www.cra-arc.gc.ca]<br/>


{{REVIEWED | reviewer = [[People's Law School]], 2014}}
{| class="wikitable"
!Estate value
!Probate fee
|-
|$0 to $25,000
|0
|-
|$25,000 to $50,000
|$6 for every $1,000 (or part of $1,000)
|-
|$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.
 
=== What if my 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.


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{{Being an Executor Navbox}}
Drew Jackson
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