British Columbia Probate

"Probate" means to prove the will.

In British Columbia, a person appointed in a will to administer the deceased’s estate, called the "executor", may apply to the Supreme Court of British Columbia to probate the will. In most cases this is an uncontested court process. The executor mails a copy of the will, together with a notice that he or she is applying for probate, to the beneficiaries of the will and to the deceased’s nearest relatives. The executor must also prepare an inventory of the estates assets and liabilities. A copy of the notice that was sent to the beneficiaries, the inventory, a certificate of wills notice search, and the original will, together with affidavits from the executor are then filed with the court in support of an application for probate. The Court may then issue a document called "Letters Probate" to the executor.

The executor must also pay filing fees and probate fees. (See my previous post on British Columbia Probate Fees.)

In some instances, someone will challenge the validity of the will, in which event the validity of the will may have to be determined after a trial.

By granting Letters Probate, the Court confirms that the will is valid, and that the executor has authority to deal with the estate assets. Without probate, other people or institutions may refuse to recognize the executor’s authority over the estate assets. For example, if the deceased was the sole registered owner of real estate, the Land Title Office will require a court certified copy of the Letters Probate before allowing the executor to transfer the real estate into the executor’s name. The executor cannot sell the real estate or distribute it to the beneficiaries of the will without transferring the real estate into the executor’s name.

On the other hand, the executor's authority comes from the will, and in some cases an executor is able to administer the estate without applying for probate. Some financial institutions will allow an executor to deal with the deceased's accounts without requiring probate, especially where the estate and accounts are small, and the beneficiaries are the deceased's spouse or children. In these cases the financial institutions will usually require a declaration and indemnity agreement from the executor and all of the beneficiaries, as well as a certified copy of the will. However, even with small accounts, a financial institution is entitled to insist on receiving a copy of Letters Probate before releasing any funds to the executor.