British Columbia Probate Kit

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British Columbia

Probate Kit

Mary-Jane Wilson

Self-Counsel Press (a division of)

International Self-Counsel Press Ltd. Canada uSa

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No part of this book may be reproduced or transmitted in any form by any means graphic, electronic, or mechanical without permission in writing from the publisher, except by a reviewer who may quote brief passages in a review. Any request for photocopying, recording, taping, or information storage and retrieval systems of any part of this book shall be directed in writing to Access Copyright, the Canadian Copyright Li-censing Agency. To contact them call 1-800-893-5777 (extension 235) or go to their website, www.accesscopyright.ca, for more information. Self-Counsel Press acknowledges the financial support of the Govern-ment of Canada through the Canada Book Fund (CBF) for our pub-lishing activities.

First edition: 2011; Reprinted: 2012 (2) Second edition: 2014

Third edition: 2014

Library and Archives Canada Cataloguing in Publication

Wilson, Mary-Jane, author

British Columbia probate kit : everything you need to probate or administer an estate / Mary-Jane Wilson. — 3rd edition.

(Self-Counsel legal series) ISBN 978-1-77040-217-1 (pbk.)

1. Probate law and practice—British Columbia—Popular works. 2. Probate law and practice—British Columbia—Forms.

I. Title. II. Series: Self-Counsel legal series

KEB246.W45 2014 346.71105’2 C2014-904777-0 KF765.Z9W45 2014

Self-Counsel Press (a division of)

International Self-Counsel Press Ltd. 1481 Charlotte Road

North Vancouver, BC V7J 1H1 Canada

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Introduction: An Overview of Probate

and Administration

xv

1 British Columbia’s New

(WESA)

1

2 Personal Representatives

5

1. Executor 5

2. Administrator 6 2.1 Grant of administration without will annexed 6 2.2 Grant of administration with will annexed 8 3. Co-Executors and Co-Administrators 9 4. Executor and Administrator Fees and Costs 9 5. Doing It Yourself versus Hiring a Lawyer 10 6. Deciding to Act 12 7. Insolvent Estates 14

3 Responsibilities of the Personal Representative

15

1. Dealing with the Remains and Funeral Arrangements 15 2. Locating the Will 17 3. Care and Management of Assets 19 3.1 Prevent break-ins and theft 19 3.2 Secure assets 21 3.3 Locate vehicle insurance and vehicle registration 21 3.4 Search for unclaimed bank accounts 22 3.5 Business 22 3.6 Financial institutions 22

3.7 Mail 23

4. Guardianship of Minors 23

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British Columbia Probate Kit

6. Dealing with Liabilities 24 6.1 Review lease or rental agreements 24 7. Cancellations and Notifications 24 7.1 Cancel the passport 24 7.2 Cancel the Social Insurance Number (SIN) 24 7.3 Medical Services Plan (MSP) 25 7.4 Notify the Credit Bureaus 25 7.5 Utilities and other services 26 8. Accounting 26

9. Expenses 27

10. Small Estates 27

4 Preparing to Make an Application

for an Estate Grant

29

1. Reviewing the Will 29 2. Information Gathering 31 3. Income Tax Returns 33 4. Canada Pension Plan (CPP) and

Old Age Security (OAS) 34 4.1 Canada Pension Plan (CPP) death benefit 35 4.2 Survivor’s pension 35 5. GST/PST Credit 35 6. Life Insurance 36 7. RRSPs, RRIFs, and TFSAs 36 8. Property Passing outside the Deceased’s Estate 36

9. Salary 38 10. Intestacy 38 10.1 Devolution of property 38 10.2 Intestate succession 38 10.3 Parentelic Distribution 39 10.4 Children 42 10.5 Intestate successors you cannot find 43 11. Bonding/Security 43

5 Application for Grant of Probate

45

1. Certificate of Search of Wills Notice 47 2. Notice of Proposed Application in Relation to Estate

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Contents

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3. Submission for Estate Grant (Form P2) 49 4. Affidavit of Applicant for Grant of Probate or

Grant of Administration with Will Annexed (Form P3 for a simple estate; P4 for a complex estate) 61 5. Affidavit of Delivery (Form P9) 77 6. Affidavit in Support of Application for

Estate Grant (Form P8) 82 7. Notice of Renunciation (Form P17) 82 8. Affidavit of Assets and Liabilities for Domiciled

Estate Grant (Form P10) and Affidavit of Assets and Liabilities for Non-Domiciled Estate Grant

(Form P11) (Disclosure Statement) 84 9. Additional Affidavits 90 10. Requisition (Form 17) 91

6 Application for Grant of Administration

without Will Annexed

95

1. Certificate of Search of Wills Notice 98 2. Notice of Proposed Application in Relation

to Estate (Form P1) 98 3. Submission for Estate Grant (Form P2) 103 4. Affidavit of Applicant for Grant of

Administration without Will Annexed (Form P5) 111 5. Affidavit of Delivery (Form P9) 114 6. Affidavit in Support of Application for

Estate Grant (Form P8) 117 7. Affidavit of Assets and Liabilities for Domiciled

(Form P11) (Disclosure Statement) 117 8. Additional Documents 124 9. Requisition (Form 17) 124

10. Security 126

7 Application for Grant of Administration

with Will Annexed

127

1. Certificate of Search of Wills Notice 130 2. Notice of Proposed Application in Relation

to Estate (Form P1) 130 3. Submission for Estate Grant (Form P2) 132

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4. Affidavit of Applicant for Grant of Probate or Grant of Administration with Will Annexed (Form P3 for a simple estate; Form P4

for a more complex estate) 143 5. Affidavit of Delivery (Form P9) 159 6. Affidavit in Support of Application for

Estate Grant (Form P8) 163 7. Notice of Renunciation (Form P17) 164 8. Affidavit of Assets and Liabilities for Domiciled

(Form P11) (Disclosure Statement) 164 9. Additional Affidavits 172 10. Requisition (Form 17) 172

11. Security 172

8 Disclosure Statement for Executors and

Administrators

175

1. Part I: Real Property 176 2. Part II: Personal Property 179 3. Part III: Liabilities 182

9 Filing the Documents

185

1. Swearing/Affirming the Affidavits 185 2. Submitting the Documents 186

3. Fees 187

4. Issuance of the Estate Grant 187

10 Creditors

191

1. Advertising for Creditors 192

11 Taxes

195

12 Distribution of Estate and Transfer of Assets

197

1. Distribution of the Estate 197 1.1 How contesting the will can affect distribution 200 2. Transferring Assets 200 2.1 Real property 200

13 Official Administrator

205

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Contents

ix

Samples

1 Application for Search of Wills Notice 20

2 Notice of Proposed Application in Relation to Estate

(Form P1) 50

3 Submission for Estate Grant (Form P2) 54

4 Affidavit of Applicant for Grant of Probate or Grant of Administration with Will Annexed — Short Form (Form P3) 62 5 Affidavit of Applicant for Grant of Probate or Grant of

Administration with Will Annexed — Long Form (Form P4) 65

6 Affidavit of Delivery (Form P9) 78

7 List of Heirs-at-Law and Their Addresses

and Persons Served 82

8 Affidavit in Support of Application for Estate Grant

(Form P8) 83

9 Notice of Renunciation (Form P17) 85

10 Affidavit of Assets and Liabilities for Domiciled

Estate Grant (Form P10) 86

11 Affidavit of Plight and Condition (Form 109) 92

12 Requisition (Form 17) 93

(Form P1) (Administration — No Will) 99

14 Submission for Estate Grant (Form P2)

(Administration — No Will) 104

15 Affidavit of Applicant for Grant of Administration without Will Annexed (Form P5)

16 Affidavit of Delivery (Form P9)

(Form P8) (Administration — No Will) 118

19 Affidavit of Assets and Liabilities for Domiciled

Estate Grant (Form P10) (Administration — No Will) 120

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(Form P1) (Administration with Will Annexed) 133

22 Submission for Estate Grant (Form P2)

(Administration with Will Annexed) 136

23 Affidavit of Applicant for Grant of Probate or Grant of Administration with Will Annexed — Short Form

(Form P3) 144

24 Affidavit of Applicant for Grant of Probate or Grant of Administration with Will Annexed — Long Form

(Form P4) 147

25 Affidavit of Delivery (Form P9)

(Form P8) (Administration with Will Annexed) 165

28 Notice of Renunciation (Form P17)

29 Affidavit of Assets and Liabilities for Domiciled Estate Grant (Form P10)

30 Affidavit of Plight and Condition (Form 109)

31 Requisition (Form 17)

32 Statement of Assets, Liabilities, and Distribution

(Disclosure Statement) 183

Tables

1 Table of Consanguinity 40 2 Intestate Succession 41 3 Parentelic Distribution 43

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Laws are constantly changing. Every effort is made to keep this pub-lication as current as possible. However, the author, the publisher, and the vendor of this book make no representations or warranties regarding the outcome or the use to which the information in this book is put and are not assuming any liability for any claims, losses, or damages arising out of the use of this book. The reader should not rely on the author or the publisher of this book for any professional advice. Please be sure that you have the most recent edition.

Note: The fees quoted in this book are correct at the date of publication. However, fees are subject to change without notice. For current fees, please check with the court registry or appropriate gov-ernment office nearest you.

Prices, commissions, fees, and other costs mentioned in the text or shown in samples in this book probably do not reflect real costs where you live. Inflation and other factors, including geography, can cause the costs you might encounter to be much higher or even much lower than those we show. The dollar amounts shown are simply intended as representative examples.

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I wish to acknowledge the following people who assisted me in the preparation of this book.

Firstly, I must thank my husband, Tony Wilson, as he made the appropriate introductions, and without him I would not have had the opportunity to write this book. He was there to rescue the various chapters I was working on, every time my computer crashed. I also thank my children, Emma and Jeremy, who allowed me to spend the many hours necessary to write the first edition of this book.

I thank Jonathan Vogt and Susan Munro from the Continuing Legal Education Society of British Columbia (CLEBC). Chapters 5 and 6 in the first edition adopted some passages from the British

Columbia Probate and Estate Administration Practice Manual with

permission from CLEBC. The Practice Manual is an excellent ad-ditional resource for those seeking more detailed information on probating or administering estates in BC.

My long-time assistant, Alena Walters, who typed the original manuscript and is tremendously helpful day to day on all my estate grant applications. Thank you to my accountant, Gordon Abercrom-by, who assisted me with some of the issues relating to taxes and CPP deductions on executor’s fees. Thank you to Deidre J. Herbert and

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Hugh S. McLellan as well as CLEBC for outlining the parentelic distribution in table form.

I also wish to thank Registrar, Kathryn Sainty, for the table out-lining the registry process when applying for an estate grant.

Thank you to my editors, Tanya Lee Howe and Eileen Velthuis, whose comments and questions made the first edition a better book, and Tanya for editing the third edition.

Probate and estate administration is a complicated area and I hope I have demystified some of the procedures involved. It is a practice area I enjoy and work in every day.

Good luck!

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Probate is the act of having the court legally establish that a will is valid. The will in your possession may look like a valid will but vari-ous banks and registries (e.g., land title, motor vehicle) will want the Supreme Court of British Columbia to validate it, meaning, the ex-ecutor (the person named to perform the deceased’s last wishes) will need to probate the will.

If the deceased’s estate is more complicated, contentious, or you do not have enough time, you should consider retaining the services of a lawyer. However, if the estate is uncomplicated, and you have the time, you may want to tackle the paperwork necessary to obtain probate yourself.

This book will guide you through the probate and administra-tion process whether you decide to take on the job yourself or hire a lawyer to assist you.

If the deceased left a will naming an executor, the executor will go through the probate process where necessary and obtain a grant of probate. If the deceased left no will, an administrator must be ap-pointed and a grant of administration without will annexed must be obtained. If there is a will, but there is no executor appointed, the named executor has died, or is unwilling or unable to act and there is no replacement executor named in the will, an administrator must

Introduction:

An Overview

of Probate and

Administration

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xvi

be appointed and a grant of administration with will annexed must be obtained. An administrator performs a similar role to the executor of a will, but where there are no instructions in a will, the adminis-trator must distribute the estate of the deceased according to the rules laid down by the Estate Administration Act [RSBC 1996, Chap-ter 122] if the deceased died prior to March 31, 2014, or the Wills,

Estates and Succession Act (WESA) [RSBC SBC 2009, Chapter 13]

if the deceased died on or after March 31, 2014.

Many people believe that if there is no will, the estate of the deceased goes to the government, but that is not always the case. WESA outlines who will receive the deceased’s estate and it will go to the government only if there are no descendants prior to the fifth degree of relationship (e.g., a grandniece).

The procedure to apply for a grant of administration is similar to that of a grant of probate, but consents must be obtained from those who have a greater or equal right to apply to act as administrator in certain situations, and in certain cases a bond is required to be post-ed by the administrator to ensure that once he or she is appointpost-ed the assets are protected.

If there is a will, the will-maker chose his or her executor, a trust-ed individual, so the court does not require a bond to be posttrust-ed in this case.

All wills do not need to be probated and all estates do not need to be administered. In British Columbia, estates worth more than $25,000 require probate, but there are certain exceptions. Often the deceased holds assets jointly with someone else or appoints desig-nated beneficiaries under life insurance policies, Tax-Free Savings Accounts (TFSAs), Registered Retirement Savings Plans (RRSPs), or Registered Retirement Income Funds (RRIFs). These types of assets are not included in the deceased’s estate. They pass to the survivor or beneficiary by operation of law. Many couples will hold all their assets this way so when one of them dies, no probate or ad-ministration is required.

If the assets held in the deceased’s name are worth more than $25,000, probate or administration will usually be required. For ex-ample, if the deceased held a vehicle in his or her name with a value of $15,000 and also had a bank account with $15,000, the value of the estate is $30,000 and it will require probate. However, in cer-tain situations, financial institutions will not require probate if the

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Introduction: An Overview of Probate and Administration

xvii

bank balance is more than $25,000, provided that the executor signs a letter of indemnity. This is often a standard bank form. The letter of indemnity will outline that if the financial institution is wrong in recognizing that the will is valid and pays the bank balance to you in error, you will indemnify the bank or pay back the money you were paid in error.

Banks have different thresholds for using the letter of indemnity. If the deceased was a regular client, and had an excellent relation-ship with his or her banker, then the financial institution is more likely to use the letter of indemnity. Some financial institutions will insist on probate of the will if the value of the bank account is more than $25,000, even by $1,000. If there is no will, it is unlikely that the financial institution will pay out the bank balance without a grant of administration.

If the only asset is a piece of land and it is worth less than $25,000, the Land Title and Survey Authority of BC will insist on probate of the will or administration if there is no will. For example, if the de-ceased’s only asset was 10 percent of a piece of property in British Columbia worth $150,000, the value of the estate is $15,000 (less than the $25,000 threshold), but probate is still required.

The probate registry is very particular about the documentation filed with it. Remember, the will is the last word of the deceased, so the paperwork must be in order. The executor or administrator must be very careful to ensure everything is accurate and pay close atten-tion to every detail.

If you are appointed as an executor under a will, or you are con-sidering applying to become the administrator of the deceased’s es-tate, you should review Chapter 3 on the responsibilities of the per-sonal representative, before deciding to take on the role. It may be an honour to be appointed as an executor or you may feel some re-sponsibility to apply to be an administrator, but be advised that acting as an executor or an administrator can be very challenging, and you should only take on this responsibility knowing that the task will be time-consuming and stressful. Once you begin the process of dealing with the estate assets, you are legally bound to complete the job, and you can only be relieved of your responsibility by a court order.

The CD that comes with this kit includes the forms that you will need to apply for a grant of probate, grant of administration with will annexed, or a grant of administration without will annexed. The

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information provided in the book will help you choose the forms that will apply to your situation. There is also a glossary at the end of this book to help guide you through the terms used throughout the process.

Note that laws change often so probate and administration forms may be updated from time to time. Please click the “Check for Up-dates” link on the CD that came with this book before you proceed to see if there is anything new of which you should be aware.

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1

British Columbia’s new Wills, Estates and Succession Act (WESA) received Royal assent on October 29, 2009, and came into force March 31, 2014. This statute amalgamates many of the statutes that govern estate administration in British Columbia including the Wills

Act, the Estate Administration Act, the Probate Recognition Act, and

the Wills Variation Act. The changes are an attempt to modernize the legislation that governs wills and estate administration. Some of the statutes have been on the books since the early 1900s.

If you follow the old procedure to apply for an estate grant after March 31, 2014, the probate registry will reject your application and you will be expected to follow the new procedure. This will delay any grant of probate or grant of administration with or without will an-nexed being granted. These grants are now all being referred to as an “Estate Grant” or “Representation Grant.”

This new Act is a comprehensive statute designed to modernize and streamline the making of wills and the administration of estates in British Columbia. Wills made before March 31, 2014 will not be invalidated, but the Act will apply to the interpretation of existing wills if the deceased died on or after March 31, 2014. If the deceased died prior to March 31, 2014, then the old Estate Administration Act will

1

_{British Columbia’s}

New

Wills, Estates and

Succession Act

(WESA)

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apply to the interpretation of any will. Regardless of the timing of the deceased’s death, the new procedures for the estate grant apply.

Some of the key changes to the existing regime include the following:

1. The use of the term “will-maker” rather than “testator.” 2. The court now has power to declare a document, which does

not meet the formal requirements of a will, to be effective as a will.

3. Marriage will no longer revoke a prior will. However, it is important to note that wills revoked by marriage by virtue of s. 15 of the old Wills Act continue to be revoked after WESA. Only those wills executed on or after March 31, 2014 will no longer be revoked by marriage.

4. The rules that apply in the case of intestacy have changed significantly. It will be important to note whether the de-ceased died before or after March 31, 2014. If the dede-ceased died after March 31, 2014, the spouse will take an increased share, if there are children of the deceased and the surviving spouse. Prior to March 31, 2014, the spouse was entitled to the first $65,000 and to a life interest in the spousal home; if the deceased died on or after March 31, 2014, the spouse will receive the first $300,000 and have an opportunity to pur-chase the spousal home within 180 days from the date of the representation grant. If the deceased’s children are not also children of the surviving spouse, the spousal share is reduced to $150,000.

5. Survivorship rules will also change. Under the old legislation, in an accident where it was impossible to tell who died first (e.g., a car accident or airplane crash) the youngest person who died was deemed to have survived the older person who died. Under WESA, each person is deemed to survive the other. Thus, in the case of joint tenancy of an asset such as land, the asset is deemed to be held as tenants in common and will not pass to the survivor.

6. The definition of “spouse” acknowledges both marriages and marriage-like relationships of at least two years, includ-ing relationships between persons of the same gender. Note that separated married spouses will not inherit on intestacy

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British Columbia’s New Wills, Estates and Succession Act (WESA)

3

or have standing to bring a variation claim, and the rights granted by the WESA to a spouse in a marriage-like relation-ship will end when one or both spouses terminate the rela-tionship. This includes the right to inherit on intestacy. 7. A gift in a will to a person, who has ceased to be a spouse, or

an appointment of that person as executor, is revoked and any gift is treated as though the person predeceased the will-maker unless a contrary intention appears in the will.

8. The intestacy regime has changed to a parentelic distribution scheme, in which the descendants of parents take priority to descendants of grandparents. Under the old intestacy rules, where there was no spouse and there were no descendants, the persons in the nearest degree of consanguinity (blood re-lationship) shared in the estate. Now, if there is no next of kin closer than the fourth degree of relationship (grandniece), the deceased’s estate will escheat to the crown, which means the estate will go to the provincial government.

9. The presumption that a gift by the will-maker during his or her lifetime to a child is an advancement of a gift in the will has been abolished. Now, such a gift takes effect according to its terms.

10. A person who is 16 years of age or older, and mentally ca-pable of making a will, can now make a valid will.

11. Survivorship rules have changed. Now, if a person fails to sur-vive a deceased person by five days, he or she is deemed to have died before the deceased person for all purposes affect-ing the estate or property the deceased person was competent to give by the will.