British Columbia

In British Columbia probate is a grant of probate issued by the Supreme Court of British
Columbia, and an application may be filed in any registry. The governing statute is the Wills,
Estates and Succession Act ("WESA"), in force since 31 March 2014, together with the Supreme
Court Civil Rules.

The 21-day notice comes first

Before filing, the executor must deliver a Form P1 notice of proposed application — with a copy
of the will — to every beneficiary, to anyone who would inherit on an intestacy, and to any spouse
or child who could bring a WESA claim. The application cannot be filed until 21 days after that
notice goes out. Build it into the schedule; it is the step that most often surprises people.

What else gets filed

• The original will, a submission for estate grant, and affidavits of the applicant and of assets
  and liabilities.
• A wills notice search from Vital Statistics, which shows whether a later will was registered.
  The registry will not process the application without it.

Fees

BC charges probate fees on the value of the estate passing under the grant, above a threshold,
plus a filing fee. Rates are set by regulation — take current figures from the court's fee schedule.

The 210-day hold before distributing

Section 155 of WESA bars the executor from distributing the estate within 210 days of the grant
unless every beneficiary and intestate successor consents or the court orders otherwise. The number
is not arbitrary: a spouse or child has 180 days from the grant to start a wills variation claim
under section 61, and a further 30 days to serve it. Distributing early, and then being served, is
the executor's own problem.

Assets held jointly with right of survivorship, and registered plans or insurance with a named
living beneficiary, generally pass outside the estate entirely. Wait for the Canada Revenue Agency
clearance certificate as well before paying anyone out.

Under WESA a valid BC will must be in writing, signed at its end by the will-maker in the
presence of two witnesses who are both present at the same time and who then sign in the
will-maker's presence. The will-maker must be 16 or older and of sound mind; the witnesses must
be adults.

British Columbia does not accept holograph wills

This is the big difference from Alberta, Ontario and most of the rest of Canada. A will written out
by hand and left unwitnessed is not valid in BC. Do not assume otherwise because you read it
about another province.

The section 58 safety net

A court may, under section 58 of WESA, order that a record which does not meet the formal
requirements is nonetheless fully effective if it represents the deceased's testamentary
intentions. It has rescued notes, unsigned drafts and electronic records — but only after a court
application that costs far more than a properly witnessed will ever would. It is a cure, not a
plan.

The witness who inherits

A gift to a witness, or to a witness's spouse, is presumptively void even though the will stands.
Use two neutral witnesses.

Register it

BC has a wills notice system through Vital Statistics. Filing a notice does not deposit the will;
it records where the will is kept, and the search is mandatory before probate. Filing one is cheap
and it is the single most useful thing you can do to make sure the right will is found.

Also worth doing

• Name an alternate executor.
• Review after a marriage, separation, divorce, birth or move to another province.
• Remember that WESA lets a spouse or child apply to vary a will that does not make adequate
  provision for them. BC courts do vary wills. Take advice before disinheriting someone.

Yes. An executor in British Columbia may be paid, and the entitlement is statutory rather than a
matter of custom.

The statutory maximum

Under the Trustee Act an executor may be allowed up to 5% of the gross aggregate value of the
estate for their care, pains, trouble and time. Separately, the Act allows a care and management
fee of up to 0.4% of the average market value of the assets each year where the executor is
managing assets over time — a continuing trust, a rental property, an investment portfolio.

It is a ceiling, not an entitlement

Five per cent is the maximum, not the going rate. What is actually allowed turns on the size of the
estate, the time spent, the care and responsibility involved, the skill the job demanded and the
success achieved. A simple estate of liquid assets does not attract the maximum.

If the will sets the figure

Where the will fixes the executor's compensation, the Trustee Act percentages do not apply — the
will governs, provided the executor accepts the appointment on those terms.

How it is approved

Compensation must be consented to by all beneficiaries, or approved by the court when the
executor passes their accounts. Get the consent in writing before taking anything. Where a
beneficiary is a minor or otherwise unable to consent, expect to pass accounts.

Tax

Executor compensation is taxable income in the executor's hands. An inheritance is not. Where
the executor is also a beneficiary — as they often are — taking a larger share of the estate rather
than a fee can leave them better off. Check with an accountant before deciding.

An executor in British Columbia is reimbursed from the estate for the reasonable out-of-pocket
costs of administering it. That is separate from the compensation allowed under the Trustee Act for
the executor's time.

Normally claimable

• Funeral, burial or cremation, and a reception proportionate to the estate.
• Probate fees, court filing fees, the wills notice search, and certified death certificates.
• Legal fees for the grant application, accounting fees, and the final T1 and any T3 return.
• Appraisals of real property, vehicles, jewellery and collections.
• Costs of serving the Form P1 notices — couriers, registered mail, process servers.
• Carrying costs on estate property until sale: insurance, utilities, property tax, strata fees,
  security, maintenance, lawn and snow service.
• Cleaning, clearing, storing and shipping the contents of a residence.
• Travel on estate business at a reasonable rate, including mileage, ferries and parking.
• Bond premiums where the court requires a bond.

Normally not claimable

• The executor's lost wages, meals near home, or personal costs — compensation covers those.
• Expenses incurred for one beneficiary's convenience rather than the estate's benefit.
• Renovations beyond what is needed to sell a property in its condition.
• Anything without a receipt.

The practical rule

Open an estate bank account as soon as the grant issues and run everything through it. Keep a
dated log of time, mileage and disbursements from day one. In BC the executor may have to pass
accounts before the Supreme Court, and in an estate where a wills variation claim is on foot,
every line will be read closely.

Most BC estates are administered by a family member and that is usually the right answer. A trust
company or a lawyer as executor is worth serious thought in a handful of situations.

Consider a professional when

• A wills variation claim looks likely. BC is the province where a spouse or child can ask the
  court to rewrite an unequal will, and the executor sits in the middle of that fight.
• The estate holds an operating business, a farm, or rental property that must keep running.
• A beneficiary is a minor or incapable, so the trust runs for years and the Public Guardian
  and Trustee must be involved.
• The intended executor lives outside British Columbia. A non-resident executor can be required
  to post a bond, and a non-resident trustee creates tax problems that are easy to trip over.
• Assets sit in more than one province or country.
• The family is already in conflict and appointing one child would guarantee more of it.

What it costs

Trust companies charge a negotiated percentage, broadly in line with the Trustee Act maximum, often
with a minimum annual fee that makes small estates uneconomic. Ask for the fee schedule in writing
before appointing one.

Middle options

• Appoint a family member and let them retain a lawyer and an accountant, paid by the estate.
  This is the common arrangement and it works.
• Appoint a family member jointly with a trust company.
• Name a professional as the alternate, in case the family executor cannot act.

An executor who does not want the job can renounce, but only before they begin dealing with the
estate. Once they have intermeddled, renunciation is no longer available.