Lynn Valley Law has a vast experience in probating wills to institute their status under BC law. Probate occurs after someone dies and is typically handled by lawyers. Our probate lawyer can handle the paperwork and court appearances required in validating the deceased’s will, inventorying and appraising all property, paying any debt or taxes and distributing the remaining property according to the direction of the will. Trust our BC probate lawyer for the guidance and representation you require. We have the knowledge and expertise to finish the application process speedily to mitigate your stress during this tough time. Contact us for a private consultation with our probate lawyer in North Vancouver.
Need a probate lawyer to administer an estate? With more than three decades of experience in British Columbia, our law firm can advise you on a range of legal challenges and complete the procedure efficiently. If you have any of the following issues, do not hesitate to book a consultation with Lynn Valley Law.
An order or grant of probate is a confirmation by the court that the will submitted is the operating legal will of the deceased, and that the executor appointed under the will has the legal authority to deal with the deceased’s assets. Neither the court nor the government requires that a will be probated. In most cases it is done because the Land Title registry or a bank or trust company or investment house insists on a probate order confirming the legitimacy of the will before they will formally transfer title at the registry or ownership of the assets at the financial institution.
But even though it is neither the court nor the government which requires the probate order, there is nevertheless a court application fee as well as related provincial taxes of 0.6% on estates worth between $25,000 - $50,000 and 1.4% on higher amounts.
The court can appoint a suitable person to administer a will in the event that the executor and alternate executor have died or are unable or unwilling to act. The order or grant in such a case is of Letters of Administration With Will Annexed.
If someone dies without a will but leaves assets such as real estate or significant funds in a financial institution, the land title registry or the financial institution will not allow a transfer of real estate or access to accounts without the court appointment of an administrator to sell the real estate or access the accounts and distribute the proceeds to the proper beneficiaries. Usually a family member will apply for an order or grant of Letters of Administration Without Will Annexed.
The administrator of the estate of which there is no will (an intestacy) must disperse the assets according to the intestacy rules laid out in Part 3 of WESA.
Chief among these is that, after payment of debts, the deceased’s assets are divided between his spouse and children as follows:
a) If there are no children, everything to the spouse; if there is no spouse, then everything is divided equally among the children;
b) If the spouse is the mother or father of all of the children, then the spouse receives the household furnishings and the first $300,000 from the estate; with the remaining assets divided one half to the spouse and the other half split equally among the children;
c) If the spouse is not the mother or father of all of the children, then the spouse receives the household furnishings and the first $150,000 from the estate; with the remaining assets divided one half to the spouse and the other half split equally among the children.
There are provisions for division and distribution of the intestate estate to relatives if there is neither spouse nor children.
In some cases, it will not be necessary to obtain probate of a will in order to distribute the deceased’s assets. If the asset is not real estate, and is not funds held in an account at a financial institution, it may be possible for the executor under a will to take possession of and then distribute simply on the strength of their appointment as executor under the will. This would at the very least require that whoever is holding the asset accept that the will is valid as the last will and testament of the deceased.
This would typically include household possessions or tools or art work and the like. But it could also apply to such valuable items as shares held in a public or private company. And some financial institutions will, in certain situations, allow the executor access to funds in small accounts without a probate order.
The executor or administrator is responsible for taking control of the deceased’s assets, paying outstanding debts, filing tax returns, completing the probate process, and distributing the net proceeds to the beneficiaries. A list of the basic duties can be found here.
An executor or administrator is entitled to remuneration for his or her efforts. Full recovery for out of pocket costs is usual. Fees for time and effort though are governed by section 88 of the Trustee Act, which allows “a fair and reasonable allowance, not exceeding 5% on the gross aggregate value, including capital and income, of all the assets of the estate by way of remuneration for his or her care, pains and trouble and his or her time spent”.
The formal requirements for a will in British Columbia are:
a) It must be in writing;
b) It must be signed by the will maker; and
c) It must be witnessed by two people who are at least 19 years old. If either person is a beneficiary, the gift to that person fails.
Wills Estates and Succession Act section 58 allows a court to accept a deficient will or testamentary writing, including those stored on a computer, if the court accepts that the document shows how the deceased wanted his assets distributed or divided, even though there were deficiencies such as:
a) the formal requirements of a will might not be present, such as two witnesses present when the deceased signed the document, or that the document was not signed properly by the deceased or at all; or
b) an addition or deletion or substitution of a gift might have been made to the will by the will maker after it was properly executed, but the addition, deletion or substitution has not been properly witnessed in the form of a codicil to the will.