What is probate?
Probate is a legal process under which a court validates a will. Obtaining probate serves several practical and legal purposes from the point of view of the executor. It enables the executor to deal with real estate on behalf of the estate. It provides banks and other institutions with confirmation of the executor’s authority to deal with the deceased’s assets. As well, it starts the clock on a statutory limitation period within which persons who wish to challenge the will must initiate an action.
There are many instances where a grant of probate may be required before the executor will be able to deal with 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 after the grant of probate has been obtained. Most financial institutions will freeze the deceased’s bank accounts upon learning of the death. These accounts will remain frozen until after a grant of probate has been obtained.
The main laws relating to obtaining a grant of probate in British Columbia are the Wills, Estates and Succession Act (“WESA”), the Supreme Court Civil Rules, and the Probate Fee Act. Probate applications are submitted to any Supreme Court registry in British Columbia.
Is it mandatory to apply for probate in British Columbia?
Most executors are alerted to the probate requirements after they approach the deceased’s bank to try and gain access to the deceased’s bank accounts. As noted above, after a person dies their accounts are usually frozen by the bank. Generally, the bank will not unfreeze the deceased’s bank accounts without first seeing a grant of probate. This is because the bank wants to know that the will appointing the executor is valid.
If a person dies owning real estate, obtaining a grant of probate is mandatory before the executor can transfer the property to a beneficiary or sell it to a third party. These are the rules under the Land Title Act of British Columbia, and generally there are no exceptions.
An executor might also obtain a grant of probate in order to initiate the statutory limitation period under WESA, within which eligible persons who wish to challenge the will must initiate an action. This 180-day limitation period starts at the time a grant of probate is issued, and applies only where a grant has been obtained. If a grant of probate is not obtained, the 180-day limitation period does not apply. In this circumstance, normal statutory limitation periods would apply (the basic statutory limitation period in British Columbia is 2 years from the date of discovery of the claim).
As a result, most wills in BC are probated. As well, some wills are probated even where no probate fees would be payable (under the Probate Fee Act, no probate fees are payable if the value of the estate does not exceed $25,000). Obtaining a grant of probate can offer additional protections to an executor over not obtaining probate. Since being an executor is a substantial and often difficult role that carries with it personal liability of the executor, it is almost always a good idea to consider probating a will.
How much does probate cost?
Probate fees are set by the Probate Fee Act of British Columbia. They are payable to the British Columbia Minister of Finance. The probate fee calculation is based on the gross value of the estate as at the date of death. “Value of the estate” is a defined term in the Probate Fee Act. Although the precise rules can be nuanced, broadly speaking probate fees are payable on the gross value (not the net value) of all of the deceased’s real estate and personal property situated in British Columbia, and on all of their intangible personal property (e.g. bank accounts) wherever located.
The current practice of probate registries in British Columbia is to allow for a deduction from the gross value of the estate the value of any mortgage registered against real property at the time of death. However, unsecured debts (such as unsecured lines of credit and credit card debt) cannot be deducted against the gross value of the estate.
The basic calculation for probate fees is a lock-step formula based on the gross value of the estate as follows:
- no fee for the value of the estate between $0 and $25,000;
- $6 per $1,000 or part of $1,000 for the value of the estate between $25,000 and $50,000; and
- $14 per $1,000 or part of $1,000 for the value of the estate above $50,000.
In practice, the probate registry will confirm the precise probate fee payable based on the Statement of Assets, Liabilities and Distribution submitted as part of the probate application.
For most executors, obtaining a grant of probate will be necessary or desirable in the course of administering an estate. The process can be started as soon as a death certificate is obtained. Probate applications are filed at any Supreme Court registry in British Columbia.
In British Columbia, the probate process is mainly governed by the Wills, Estates and Succession Act, the Supreme Court Civil Rules, and the Probate Fee Act. Obtaining a grant of probate can be helpful to prove to banks and others that the executor named in a will is authorized to be the executor. It is also required to transfer any real estate owned by the deceased in BC. Obtaining a grant of probate triggers the 180-day statutory limitation period within which eligible persons may initiate a wills variation claim.
Probate fees are calculated based on a statutory formula found in the Probate Fee Act of British Columbia. Subject to limited exceptions, probate fees are payable on the gross value of the estate as at the time of death, and not on the net value.