Primer on Probate

The B.C. Ministry of Justice defines a Grant of Probate as “an official confirmation given by the court that the person named as executor is the proper person to settle the estate. Financial institutions, when they hold any of the estate’s assets, and ownership registries, like the Land Title and Survey Authority of BC or the Motor Vehicle Branch, will generally require this confirmation before allowing the transfer of assets.”

The definition above pre-supposes the reader’s familiarity with the term “executor”, which for those readers unfamiliar with the term is defined by the B.C. Ministry of Justice as “the person named in the will to take charge of disposing or distributing the estate according to the directions left by the testator. One of the primary duties of the executor is to apply, when necessary, for a Grant of Probate to allow for the transfer of assets from the estate to the beneficiaries.”

If we then were to combine the two definitions above, we might say that Probate is essentially court-certified proof of the executor’s authority to dispose of the property of the Deceased in accordance with the Deceased’s intentions, as reflected in the Deceased’s Will. However, because such proof is not always required in order for the Executor to administer the Estate, obtaining Probate is not always required or appropriate in all scenarios.

Note that where doubts about the validity of the Will exist, the executor may commence a Probate action and request that the Court prove the Will in “solemn form”. Proving a Will in solemn form has the effect of protecting the Grant of Probate from later attacks regarding the validity of the Will. However, for the vast majority of non-contentious wills, proof “in common form” is the norm and is obtained through affidavit material contained in an application delivered to the Probate Registry.

We find that many people confuse Probate with the Probate Fees associated with an executor obtaining a Grant of Probate. Probate Fees are established under the Probate Fee Act, SBC 1999, c. 4 and are calculated for each estate with a value exceeding $25,000.00 on the following calculation:

If the value of the estate exceeds $25,000.00 the amount of fee payable is

(a)          $6.00 for every $1,000.00 or part of $1,000.00 by which the value of the estate exceeds $25,000.00 but is not more than $50,000.00; plus

(b)          $14.00 for every $1,000.00 or part of $1,000.00 by which the value of the estate exceeds $50,000.00.

Because many estates in B.C. include real estate, the majority of estate values exceed the $50,000.00 threshold and therefore many people often say, as a general rule of thumb, that estate tax in B.C. is 1.4%, although this is not strictly true. Note that estates with a value of $25,000.00 or less are not subject to Probate Fees.

We also find that many people are unclear about the difference between Grants of Probate and Grants of Letters of Administration. In a previous article, we briefly discussed the concept of intestacy and that individuals who die without a valid will die intestate. Intestate Estates are subject to a different set of statutory requirements and procedures than a Grant of Probate, namely that where an individual dies without a valid Will, certain people may apply to administer the assets of the Deceased’s Estate and, if successful, receive a Grant of Letters of Administration confirming that such person(s) have been authorized by the Court to administer the Estate.

We recognize that the preceding is a simplification, however we intend to canvass Letters of Administration more fully in future blogs.

If you have any questions about probating an estate, please contact one of our Wealth Preservation + Estate Litigation professionals