British Columbia Law
To Probate or Not to Probate in BC? Executor Guide
Do you actually need a Grant of Probate in British Columbia?
I have practised law in British Columbia since 1991, and this is one of the questions executors ask me most often. The answer depends on what the estate owns, who may object, and who is asking you for proof of your authority. Here is a plain-language guide.
What a Will Does and What Probate Adds
A Last Will and Testament (a "will") gives the person named as executor the authority to administer the estate. In practice, banks, investment companies and other asset holders will often want confirmation that the will is genuine before they release anything. They will usually ask you for a Grant of Probate, which you obtain by applying to the Supreme Court of British Columbia.
When Probate Is Usually Needed
If anyone challenges the validity of the will, its terms, or your appointment as executor, the will usually needs to go through probate. Probate gives the executor court-confirmed authority, which can be important if there is a dispute.
What Probate Costs
A probate application has at least two kinds of fees:
- The court registry filing fee.
- The provincial probate fee, which is calculated on the gross value of the estate.
Registry staff can confirm the current fees and any exemption. There may be an exemption from both the filing fee and the probate fee when the gross value of the estate is below $25,000.
What Is Actually in the Estate?
The assets and debts in an estate are worked out after the death. Some assets never become part of the estate at all. For example:
- Joint tenancy. If two spouses own their home as joint tenants, the person who died drops off title and the surviving spouse keeps the whole home. The home's value is then not part of the estate.
- Designated beneficiaries. Assets such as some registered plans and insurance can pass directly to the named beneficiary.
Fees Are Based on Gross Value, Not Net Value
It is the total gross value of the estate, not the net value, that determines the fee. A debt attached to an asset, such as a mortgage, does not reduce the amount used to calculate the fee.
Example: you own a car with a market value of $15,000 and there is a loan of $9,000 owing on it. For fee purposes the value is still $15,000, not $6,000.
Executors Can Be Personally Liable to Creditors
Remember that an executor can be personally responsible to the estate's creditors. If you pay the beneficiaries before paying the creditors, including the Canada Revenue Agency (CRA), and there is nothing left to pay a creditor, you could be personally liable to that creditor.
Before you pay any beneficiary, it is usually best to:
- Obtain a Clearance Certificate from the CRA, and
- Advertise for creditors if you are not certain that there are no estate creditors.
Very Small Estates and Vehicles
If the assets left in the estate truly have a gross value below $10,000, for example just a car, registry staff may confirm that there are no fees even if you do need a Grant of Probate.
You might not need a Grant of Probate at all if no one is contesting the estate or the validity of the will, and the only asset left in the estate is a vehicle worth less than $10,000. ICBC has a policy that allows ownership transfers for small-value estates. See ICBC's page: Transferring ownership.
Getting Help
Whether to apply for probate depends on your family, the assets and the risks. If you are an executor and not sure where to start, contact us to book an appointment by phone or secure video.
*This article is general information only. It is not legal or tax advice. Meetings are by appointment only.*
This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.