Saturday, January 10, 2009

Resealing Probate in British Columbia

When I write about probating a will (or proving a will) in British Columbia in this blog, I usually assume that the person who died was a resident of British Columbia just before death. I assume that he or she had land only in British Columbia. Death, like life, is often more complicated.

The deceased may have lived in British Columbia, but owned land in Ontario, or California, or Peru.

Or, the deceased may have lived in Manitoba, but owned land in British Columbia.

The practical difficulty in these types of situations is that each province, or state or country has its own courts and procedures for dealing with probate. If you are an executor or other personal representative of the deceased, and you probate a will in one place, you may still have to go through a further court procedure in another place to deal with the deceased assets. This is true even among provinces in Canada.

In this post and the next, I am going to write about estates of deceased persons who were not residents of British Columbia at death. I will assume that the executor of the deceased’s will has received a grant of probate in the place where the deceased was domiciled at death, but must now deal with land or other assets in British Columbia. Although I refer to “probate,” much of what I write will also apply to “letters of administration” granted by a court appointing an administrator if there is no will or no executor willing to act.

In some cases, the executor may be able to deal with assets in British Columbia without a further grant. This may be true for shares of corporations or bank accounts.

But in other cases, including those in which the deceased was the sole registered owner of land valued at more than $50,000, it will be necessary for the executor to apply for a further grant in British Columbia.

If the original grant of probate in another Canadian province, the United Kingdom, and certain other members of the British Commonwealth listed in this Regulation, then the grant may be “resealed” in British Columbia pursuant to the Probate Recognition Act. The list does not by any means include all Commonwealth provinces and countries. For example, only two Australian provinces are included. Hong Kong is included in the regulation, but it may be that because Hong Kong is no longer a British possession, the Probate Recognition Act does no apply.

To reseal the grant in British Columbia, the executor makes an application in the Supreme Court of British Columbia. The procedures are set out in Rules 21-5 (61)-(68) of the Supreme Court Civil Rules. The application includes an affidavit of executor and an affidavit of notice, which are very similar to the affidavits filed in support of a probate application (see my post on probate applications). The main difference is that instead of filing the original will, the executor files a copy of the grant of probate certified by the court in the province or country where the probate was granted.

The affidavit of the executor must include an inventory of the deceased’s assets and liabilities, including those outside of British Columbia. The executor will be required to pay probate fees to the court. In calculating the amount of the probate fees, if the deceased was not ordinarily resident in British Columbia, the court registry should only include real estate and tangible personal property situated in British Columbia.

In my next post, I will write about cases involving deceased persons who were not resident in a place to which the Probate Recognition Act applies.


Anonymous said...

Mr. Rule

You state that in "some cases the executor may be able to deal with corporate shares or bank accounts in BC without resealing" .

Is there any doubt in your mind about this as i am Albertan and am considering using a BC investment adviser? and ofcourse do not want my estate to pay BC probate fees/inheritance taxes

Can you expand as to why you use "in some cases" and use the word "may"

Anonymous said...

Hi Stan.
Thank you for this post. I am in the process of resealing a BC probate for use in Guernsey . The court fee's aren't specific about resealing, as such would it be fair to say it's the same as applying for the initial Probate?
Thanks R