Probating the Will

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Helen Low, QC in January 2016.
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As the executor, you may need to probate the will in order to distribute the estate. Probate is a legal procedure that confirms the will is legally valid and can be acted on. It allows financial institutions and others to rely on the will as being the last will made by the deceased.

What is probate?

Probating the will involves providing the original will and special forms to court. If everything is in order, the court issues a grant of probate. The executor can then show the grant of probate to banks and others who hold assets of the estate, confirming that the executor has the authority to act for the estate.

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.

How do you 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 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).

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

What documents are required for probate?

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 $200, unless the estate has a value of less than $25,000, in which case there is no fee payable. (Note that later in the process, additional probate fees may be payable; see below.)

Additional documents are required to deal with issues relating to the will, dispensing with notice, the executor renouncing their executorship, and various unusual applications.

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

Do you need witnesses when you sign the forms?

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.

What assets and liabilities do you need to list?

The Affidavit of Assets and Liabilities in Form P10 or P11, 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.

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.

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.

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.

How long will your application take?

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.

Once the application is reviewed, the Probate Registry will assess probate fees that are payable.

What are probate fees?

In addition to any fees payable to commence a probate application, a fee based on the value of the estate must be paid to the court before the grant of probate will be issued. These "probate fees" are based on the gross value of the estate assets that were located in British Columbia when the will-maker died. If the estate assets have a value of less than $25,000, there is no fee payable. If the estate assets have a value over $25,000, fees are payable on the following basis.

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 the estate assets is $125,000, the probate fees will be $1,200:

$6 x 25 (for every $1,000 between $25,000 to $50,000) = $150
$14 x 75 (for every $1,000 between $50,000 to $125,000) = $1,050
= $1,200

These probate fees are in addition to the court filing fee of $200.

What if your 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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