Probate in British Columbia

What is Probate?

Probate is the legal process that validates a will. For the executor, obtaining probate serves several practical and legal purposes. It allows the executor to handle real estate on behalf of the estate, confirms the executor’s authority to manage the deceased’s assets, and starts the clock on a statutory limitation period for individuals who wish to challenge the will. Most executors will find obtaining probate necessary or desirable when administering an estate.

Executors often learn about probate requirements when they approach the deceased’s bank to access the accounts. The bank may freeze the accounts after someone dies. Generally, the bank will not unfreeze the accounts without a grant of probate, which confirms the will’s validity and the executor’s appointment. If a person dies owning real estate, the executor must obtain a grant of probate before transferring the property to a beneficiary or selling it.

An executor might also obtain a grant of probate to start the statutory limitation period under the Wills, Estates and Succession Act (WESA), within which eligible persons can challenge the will. The 180-day limitation period begins when the court issues a grant of probate and applies only if the executor obtains the grant. Without a grant of probate, normal statutory limitation periods apply, typically two years from discovering the claim.

As a result, many wills in BC are probated. Some wills are probated even when no probate fees are payable. Under the Probate Fee Act, no probate fees are required if the estate’s value does not exceed $25,000. Probate can offer an executor additional protections.

An executor often needs a grant of probate to manage the deceased’s assets. For example, the Land Title & Survey Authority of British Columbia will not register a transfer of the deceased’s land until probate is obtained. Upon learning of the death, most financial institutions will freeze the deceased’s bank accounts. These accounts will remain frozen until the executor obtains probate.

The main laws relating to obtaining probate in British Columbia are the WESA, the Supreme Court Civil Rules, and the Probate Fee Act. Executors can submit probate applications to any Supreme Court registry in British Columbia.

Probate Fees: What You Should Expect

The Probate Fee Act of British Columbia, sets probate fees, which are payable to the British Columbia Minister of Finance. The probate fee calculation is based on the estate’s gross value as of the date of death. The “value of the estate” is defined in the Probate Fee Act. Probate fees are based on the gross value of all the deceased’s real estate and personal property in British Columbia, as well as their intangible personal property (e.g., bank accounts) wherever located.

Current practice allows for a deduction from the estate’s gross value for any mortgage registered against the title at the time of death. You cannot deduct unsecured debts (such as credit card debt) from the estate’s gross value.

The basic calculation for probate fees is:

• No fee for estates valued between $0 and $25,000
• 0.6% for the value of the estate between $25,000 and $50,000
• 1.4% for the value of the estate above $50,000

In practice, the probate registry will confirm the precise probate fee based on the Statement of Assets, Liabilities, and Distribution submitted with the probate application.

Given the complexities involved, it’s highly recommended that executors seek legal advice when dealing with probate. Our law firm can help navigate the legal requirements and ensure the process is handled correctly. Contact us to learn more about how we can help you during this challenging time.