Guide to Wills and Estates Section III A-1 1 PreWESA/Pre-Application Procedure 1.pdf · Guide to...

Guide to Wills and Estates Section III A-1 1

PRE-APPLICATION PROCEDURE INDEX

Initial Matters Page Pre-interview ......................................................................................................................2 Post-interview ....................................................................................................................2

Open file ...............................................................................................................2 Prepare preliminary letter to personal representative ............................................3 Determine type of application ...............................................................................3 Small estates (no application) ................................................................................3 Estates recapitulation .............................................................................................5 Ascertain that Will is valid ....................................................................................6 Timing of the application ......................................................................................6 Miscellaneous considerations ................................................................................6

Intestacy explained .......................................................................................................................... Diarize limitation dates .................................................................................................................9 Obtain Death Certificate .............................................................................................................10 Search of Wills Notice .................................................................................................................10 Publish Notice to Creditors and Others ....................................................................................11 Assemble information on assets ..................................................................................................12 Assemble information on debts and liabilities ..........................................................................15 Ascertain style of proceeding ......................................................................................................16 Probate .........................................................................................................................................17

Renunciations ......................................................................................................18 Notice of Intention to Apply ................................................................................18 Affidavit pursuant to Section 112 ........................................................................19 Affidavit of Executor (Form 91) .........................................................................19 Statement of Assets, Liabilities and Distribution ................................................19 Requisition ...........................................................................................................20 File documents with Registry ..............................................................................20 Fees payable ........................................................................................................20

Letters of Administration (without Bond) .................................................................................21 Renunciations and Consents ................................................................................21 Notice of Intention to Apply ................................................................................22 Request for Public Guardian and Trustee’s comments .......................................22 Affidavit pursuant to Section 112 ........................................................................22 Affidavit of Administrator (Form 92) .................................................................23 Statement of Assets, Liabilities and Distribution ................................................23 Order ....................................................................................................................23 Requisition, file documents with Registry and fees payable ...............................23

Letters of Administration with Will annexed ...........................................................................24 Renunciations and Consents ................................................................................25 Notice of Intention to Apply ................................................................................25 Request for Public Guardian and Trustee’s comments .......................................26 Affidavit pursuant to Section 112 ........................................................................26 Affidavit of Administrator (Form 93) .................................................................26 Statement of Assets, Liabilities and Distribution ................................................26 Order ....................................................................................................................26 Requisition, file documents with Registry and fees payable ...............................26

Letters of Administration (with Bond) ......................................................................................27 Resealing a foreign Grant ...........................................................................................................28 Second Grant ...............................................................................................................................28 Administration de Bonis Non .....................................................................................................29 Administration by Attorney .....................................................................................................29 Other less common applications .................................................................................................30

2 ESTATES Pre-Application Procedure Guide to Wills and Estates

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INITIAL MATTERS

PRE-INTERVIEW

When someone dies, the person who plans to look after the Deceased’s affairs usually contacts the law firm and requests an appointment to meet with a lawyer. This may be a relative or a person named by the Deceased during his or her lifetime to be the Executor of the Will.

Once the appointment is made, the client should be asked to bring along:

the original Will and any Codicils (if not kept by the law firm for safekeeping);

all available personal documentation such as copies of titles to any real or personal property, Marriage Certificate, bank statements, etc.;

Death Certificate, if available.

Prior to the appointment, the secretary should take the initiative and provide the supervising lawyer with the following:

original Will and any Codicils (if kept by the law firm for safekeeping);

Master Information Checklist (see Section III A-3 Master Information Checklist);

all files concerning the Deceased’s affairs (i.e. Wills, personal, matrimonial, real estate and corporate files).

POST-INTERVIEW

Once the lawyer has interviewed the client and received instructions to act for the estate, the secretary should attend to the following:

Open file

A new file should be opened following the office’s standard procedure. A practical suggestion is to open the file in the Deceased’s name as follows:

BLOE, Joseph Patrick Re: Estate

and the correspondence addressed to:

Mr. J. Soandso Executor (or: Administrator) of the Estate of Joseph P. Bloe, Deceased.

The information and documentation for the estate may become quite voluminous and the file folder may become difficult to handle. It is, therefore, very important to organize the file at the beginning. Using different file folders (or an expandable folder with several built-in separations) will make it easy for anyone involved with the file to work on it. The following sub-files should be set-up:

correspondence;

Court documents;


the Deceased’s personal documents (Death Certificate, original Will – not punched in);

assets (if numerous, should be separated into different categories: residence, bank accounts, insurance policies – with information and subsequent transmissions and transfers for each asset in the same sub-file);

debts and liabilities.

Prepare preliminary letter to personal representative

From the very beginning, the duties of the personal representative and the lawyer must be understood and a letter outlining such respective duties should be sent to the client (see Section III A-2 Letter of instructions to personal representative).

Determine type of application

If there is a Will:

Letters Probate (or Probate) will be applied for. The personal representative will become the Executor of the estate.

Letters of Administration with Will annexed will be applied for if:

the Will fails to name an Executor; or

the Executor or Executors named in the Will have predeceased the Deceased; or

the Executor or Executors named in the Will are unwilling or unable to act as Executors.

The personal representative will become the Administrator of the estate. The manner in which such Administrator is appointed is set out below in the Section “Letters of Administration with Will annexed”.

If there is no Will:

Letters of Administration will be applied for and the personal representative will become the Administrator of the estate. The manner in which such Administrator is appointed is set out below in Section “Letters of Administration”.

Where the Deceased was domiciled in British Columbia, or had assets in the Province, all applications are made to the Supreme Court of British Columbia at one of its registries. If the estate is in a registry other than Vancouver or New Westminster, filing requirements should be checked and ascertained by telephoning that registry as the requirements may vary slightly from one registry to another.

Non-contentious applications are governed by Rule 21-5 of the Supreme Court Civil Rules and contentious applications are governed by Rule 21-4.

Small estates (no application)

If an estate is small (where the gross value of the assets is less than $25,000) – depending on the nature of the assets involved – it may not be necessary to obtain a Grant of Letters Probate or Letters of Administration (Section 20 of the Estate Administration Act). When determining



the gross value of the estate, it is important to understand that the following assets pass outside the estate (i.e. are not added to the value of the estate):

assets held jointly by the Deceased and another person(s) (which are transferred to the survivor(s) by operation of law) such as:

real estate held in joint tenancy;

joint bank accounts with right of survivorship;

Canada Savings Bonds registered in the joint names;

securities registered in the joint names;

insurance policies on the life of the Deceased which name a designated beneficiary (who will be entitled to the insurance proceeds upon death);

refunds of premiums from a Registered Retirement Savings Plan which names a designated beneficiary (they are automatically payable to such beneficiary upon death);

assets which are subject to the Family Relations Act which pass directly to the surviving spouse;

assets held by the Deceased in trust for another person;

unpaid wages and employment and statutory benefits;

shares in a private company if the articles of that company allow the shares to be transferred without probate.

Applying for a Grant of Letters Probate or Letters of Administration is a costly and time consuming procedure and whenever possible, assets should be transferred without the expense of applying for such Grant. Keep in mind that it is the supervising lawyer (not the secretary) who decides whether or not a Grant is applied for.

Basically, apart from the value of the estate, the guiding rule to determine the requirement for obtaining a Grant of Letters Probate or Letters of Administration is to ascertain whether the holders of the assets require a copy of the Grant to transfer the asset, that is, if any asset forming part of the estate cannot be “brought in” or transferred without providing a copy of the Grant to the regulatory body which governs the transfer or the redemption. For example, there may be no need to apply for a Grant of Letters Probate or Letters of Administration if the estate consists only of:

assets with a total value less than $25,000;

a bank account in excess of $25,000, and the bank consents to transfer these funds without formal application to transfer it to the appropriate beneficiaries;

Canada Savings Bonds up to specified amounts - check Bank of Canada website or call them (see Bank of Canada website and phone number in Section IV - page 2 of Addresses).

On the other hand, in the case of small estates (under $25,000), a Grant of Letters Probate or Letters of Administration may be necessary if the holder of an asset, or the circumstances, require such a Grant. For example:

if real property is one of the assets (no matter how small the value), a Grant (Letters Probate or Letters of Administration) must be obtained as the Land Title Office will not transfer any real property without a copy of the Grant;

if the Estate will be a party to a law suit and a personal representative must be appointed.


However, if an application is made for Letters of Administration pursuant to Section 20 of the Estate Administration Act, the official administrator is not required to satisfy the Registrar that the Deceased has no relatives who are entitled to share in the distribution of the estate of the Deceased and are ready and competent to take out Letters of Administration.

Whether or not a Grant is applied for, the assets held in joint tenancy can be transferred to the survivor(s) and the insurance policy or R.R.S.P. can be transferred directly to the designated beneficiary before applying for such Grant.

Estates Recapitulation

The table below is an overview of the three main applications covered in this Guide. It shows at a glance the highlights of each application as well as their similarities and differences.

PROBATE LETTERS OF ADMINISTRATION

LETTERS OF ADMINISTRATION WITH WILL ANNEXED

Valid Will exists No Will exists Will exists but the Executors have either predeceased, renounced or cannot act

Executor(s) appointed by Testator

Administrator appointed by the Court

Administrator appointed by the Court

Assets distributed according to the Will

Assets distributed pursuant to the Estate Administration Act

Assets distributed pursuant to the Will

Documents:

1. Requisition

2. Wills Search

3. Affidavit pursuant to Section 112 with Notice attached

4. Affidavit of Executor (Form 91) with:

Will (Ex. “A”) and

Statement of Assets, Liabilities and Distribution (Ex. “B”)

5. Renunciations of Probate (if applicable)

Documents:

1. Requisition

2. Wills Search


4. Affidavit of Administrator (Form 92) with Statement of Assets, Liabilities and Distribution (Ex. “A”)

5. Renunciations and Consents (if applicable)

6. Consents from Creditors (if any)

7. Order

Documents:

1. Requisition

2. Wills Search


4. Affidavit of Administrator (Form 93) with:

Will (Ex. “A”) and

Statement of Assets, Liabilities and Distribution (Ex. “B”)

5. Renunciations and Consents (if applicable)

6. Consents from Creditors (if any)

7. Order



Ascertain that the Will is valid

The supervising lawyer should ascertain that: the Will is in fact the Deceased’s last Will (see Search of Wills Notice later in this

Section); whether the Will is valid (see Section II A Validity Requirements); there is no indication in the appearance of the testamentary papers leading to the

inference that a document has been attached to them (see Rule 21-5 (23) of the Supreme Court Civil Rules). For instance, if there are suspicious staple holes, the Registrar may require: an explanation ; the missing attachment to be produced; or explanation why such a document cannot be produced.

That is why you should never unstaple a Will before photocopying it.

Although it is the lawyer’s responsibility to review the Will and ascertain its validity (as well as the validity of all the provisos contained in the Will), here are some points which the legal assistant should be aware of: Section 16 of the Wills Act: a gift to a spouse may be revoked if the marriage was

dissolved after the gift was made (see Section II D Bequests); Section 21 of the Wills Act: a gift to a beneficiary may lapse and fall into the residue of

the estate (also see Section II D Bequests); Section 11 of the Wills Act: a gift to an attesting witness (or the spouse of the attesting

witness) is void is the witness was one of the two witnesses to the Will.

Timing of the Application Rule 21-5 (33) of the Supreme Court Civil Rules states “Unless the court otherwise

orders, no Grant of probate or administration shall issue until 7 days have elapsed from the death of the Deceased”.

On the other hand, if the Will states that, in order to receive a bequest, a beneficiary must survive for a certain period of time – usually 30 days – obviously, no application should be made until this period of time has elapsed.

Pursuant to Rule 21-5 (34), if Letters Probate or Letters of Administration are applied for more than three years after the death of the Deceased, an Affidavit should be prepared setting out the reasons for such delay and the Registrar may require, in the Registrar’s sole discretion, further proof of the alleged cause of delay.

Miscellaneous considerations

The following information should also be noted: When two persons die at the same time, or in circumstances rendering it uncertain as to

who survived whom, the younger is usually presumed to have survived the older (see Survivorship and Presumption of Death Act for exceptions). If, however, a life insured and the beneficiary die under these circumstances, the beneficiary is presumed to have predeceased the insured unless a contrary intention appears in the beneficiary designation (see Insurance Act S. 166).

Persons convicted of murder or manslaughter are not allowed to profit from their crime and, accordingly, are barred from inheriting the property of their victims. The Criminal Injuries Compensation Act may entitle the dependants of the victim to compensation.


INTESTACY EXPLAINED

If a person dies without having made a legally binding Will, that person is said to have died intestate. In British Columbia, the legislation which governs the estate of an intestate is called the Estate Administration Act. Pursuant to Part 10 of that Act, if a person dies intestate or if, in the Will, the Testator has omitted to give instructions concerning a particular item of property (which is called “partial intestacy”), the estate will be distributed as set out below.

In the following text, the words “per stirpes” and “per capita” (see Glossary in Section IV) are only used to explain the concept of the distribution. They should never be used in drafting Wills.

If an intestate dies leaving:

Spouse only (no issue) (S. 83): The entire estate shall go to the spouse.

Since November 1, 2000, the definition of “spouse” in the Estate Administration Act includes a common law spouse, and as the definition of “common law spouse” means either:

“(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or

(b) a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-lie relationship between persons of the same gender, for a period of at least 2 years immediately before the other person’s death.”

The definition grants the common law spouses and same-sex spouses the same rights as legally married spouses.

In addition, unless the Court otherwise orders, pursuant to Section 98 of the Estate Administration Act, the surviving spouse takes nothing if the spouse and the Deceased had separated immediately before the death of one spouse for a period of not less than one year with the intention of living separate and apart and had not, during that period, lived together with the intention of resuming cohabitation.

Issue: Subject to the rights of the spouse, if any, the residue of the estate shall be distributed, per stirpes, among the issue (S. 84).

Spouse and issue (S. 85):

Where the net value does not exceed $65,000, the estate shall go to the spouse (S. 85 (3)).

Where the net value exceeds $65,000, the spouse is entitled to:

the first $65,000, and has a charge on the estate for that sum (S. 85 (4));

estate for life in the matrimonial home (S.96 (2) (a)); and

household furnishings (S. 96 (2) (b)).

Of the residue of the estate, after payment of the sum of $65,000 to the spouse, where the intestate dies leaving:

a spouse and one child, 1/2 shall go to the spouse (S. 85 (5) (a));

a spouse and more than one child, 1/3 shall go to the spouse (S. 85 (5) (b)); and

and the remainder of the residue will go the issue, in equal shares per stirpes.

If a child has died leaving issue and the issue is alive at the date of the intestate’s death, the spouse shall take the same share of the estate as if such deceased child had been living at the date of death (S. 86 (6)).



Neither spouse nor issue (S. 86):

The estate shall go to the father and mother, in equal shares, if both are living. If either of them is dead, the estate shall go to the survivor.

No spouse, issue or parent (S. 87):

The estate shall be distributed among the brothers and sisters. If a brother or sister is dead, the children of the Deceased brother or sister shall take the share their parent would have taken if living, but no further representation shall be admitted. No further representation means that the right to inherit stops at the nephews and nieces and does not go to the next generation.

No spouse, issue, father, mother, brother or sister (S. 88):

The estate shall be divided among the nephews and nieces in equal shares (per capita), and in no case shall representation be admitted.

No spouse, issue, father, mother, brother or sister, nephew or niece (S. 89):

The estate shall be distributed equally among the next of kin of equal degree of consanguinity to the intestate, and in no case shall representation be admitted (i.e. degrees of relationship are determined through the nearest common ancestor). The kindred of the half blood shall inherit equally with those of the whole blood in the same degree. (S. 90)

Posthumous births (S. 91):

Descendants and relatives of the intestate, conceived before his or her death but born afterwards, inherit as if they had been born in the lifetime of the intestate and had survived him or her.

No spouse or living relatives:

When a person dies intestate and has absolutely no documented heirs, the deceased’s estate will escheat immediately to the Provincial Crown, except those personal or real assets (e.g. bank accounts) which fall under federal jurisdiction and escheat to the Federal Crown.

All government agencies must forward the funds or assets to the Unclaimed Property Office under the guidelines of the Unclaimed Property Act when the heirs are not located.

An application for the return of all or a portion of such assets may be made to the appropriate governing bodies at any given time (e.g. Unclaimed Property Office or the Bank of Canada). There are no time restrictions with respect to retrieving these assets and proving heirship for them. However, the process is very time consuming and must be well documented.

Stepchildren:

Stepchildren who have not been adopted by the Deceased are not entitled to share in an intestate’s estate (S. 61 (1) (a) of the Law and Equity Act).

Adopted children:

Adopted children have the right to inherit only from their adoptive parents but have no right to inherit from their birth (or natural) parents and the birth parents have no right to inherit from their adopted “out” child (S. 11 of the Adoption Act).

Illegitimate Children:

There is not distinction between the status of a child born inside or outside marriage (S. 61 (1) (b) of the Adoption Act).


DIARIZE LIMITATION DATES

The following limitation dates should be diarized soon after opening the file. Note that there will be other dates to diarize once the Grant (Letters Probate or Letters of Administration) has been issued.

One year from the date of death

Pursuant to Section 74 of the Estate Administration Act, claims against an intestate estate must be commenced within one year from the date of the Deceased’s death (see Section III C-1 Conditions precedent to distribution).

Dates for filing Income Tax Returns

An accountant should be consulted to determine the dates relevant to the particular estate being worked on. Basically, the following Income Tax Returns may be required:

T1 Returns not previously filed for any taxation year prior to the year of death. The Return for the year prior to the year of death is due on April 30 or six months after the date of death, whichever is later. If the Deceased has not filed the Return for the previous year and the date of death is after May 1st, the Return should be filed as soon as possible.

Final T1 Return for the year of death covering the period January 1st to the date of death. This Return must be filed on or before the later of six months after the date of death or April 30 of the year after the date of death.

T3 Estate Return covering income received from the assets administered – 90 days after the Estate Year End (Estate Year End is any period elected up to twelve months ending within one year of death of the Deceased).

In the year of final distribution to the beneficiaries, a T3 Return – 90 days after Final Distribution – for the period beginning on the date the T3 Estate Return has been filed to date of distribution (called a T3 Final Distribution Return).

The last two T3 Returns may be combined if the estate administration is completed within the first year after the Deceased’s death.

If the estate is small, the T3 Returns may not be necessary and the income earned may be “taken over” by the beneficiaries receiving the assets of the estate and such income will then be taxed in the hands of the beneficiaries (i.e. added to their own personal income).

Unless you are a C.G.A. or a C.A., or have some special training in accounting or income tax field, it is not advisable to attempt the preparation and filing of the Income Tax Returns. This task should be referred to an accounting firm (after asking the client for instructions).



OBTAIN DEATH CERTIFICATE

In due course, a Death Certificate will be required to transfer certain assets from the name of the Deceased into the name of the personal representative. At least one Certificate should be ordered shortly after opening the file (see Section III A-3 Application for Death Certificate).

Depending on the requirements of the Land Title Offices, banks, insurance companies, or trust companies, additional Certificates may be required. Should another original Certificate is required, it may be ordered at a later date. However, a notarial copy of the Certificate is usually sufficient for most transfers (see Section III C-3 Notarially certified copy).

SEARCH OF WILLS NOTICE

A Wills Registry Search must be carried out in the Vital Statistics Agency. The search may be done by completing a paper application or by applying through BCOnLine (if you have an account) (see Section III A-3 Application for Search of Wills Notice).

This search is required to ensure that:

if no Will is produced or found, the Registry has not been advised of the location of a possible Will; or

there is not a more recent Will than the one about to be probated.

As variations of the Deceased’s name must be included in the Search, this application should only be prepared after obtaining:

the Death Certificate;

the Land Title Office searches; and

any other searches of the assets (motor vehicle, etc.);

to ensure that the name (or names) under which the Deceased was known are all listed in the Search. If, at a later date, it is discovered that there is another variation of the Deceased’s name, a new Wills Registry Search must be ordered and it must include all the names, both from the old search and the newly discovered name.

The following should be noted:

the names shown in the Wills Registry Search (as prepared by you) and the names in the style of proceeding must be identical;

if one of the names contains initials or punctuation (for example “John P. Brown”), the search must be conducted by using the paper form as the online form does not allow for punctuation in the names;

if the search (“Results of Search for Wills Notice”) comes back negative (i.e. the Vital Statistics Agency advises that no Wills Notice has been filed with them), it should not be assumed that no Will exists. It simply means that no Wills Notice has been filed.


If applying through BCOnLine, it takes about three to five business days for Results of Search for Wills Notice to be issued. When applying in paper format, it takes about ten days.

Upon receipt of the Results one must ascertain that the Will being probated is the most recent Will and that no later Will is disclosed by the Results. Should this happen, the more recent Will disclosed by the Results must be located and is the one to be probated.

PUBLISH NOTICE TO CREDITORS AND OTHERS

One of the primary duties of the personal representative is to pay the debts of the estate (provided sufficient funds are available to do so). In order to determine who may have a claim against the estate – or possible creditors – it is necessary to advertise for creditors by publishing a Notice to Creditors:

once in the British Columbia Gazette; and

twice each week for two consecutive weeks or once a week for four consecutive weeks in a newspaper published or circulating in the area in which the Deceased resided at the time of death and where most creditors are located.

Pursuant to Section 38 of the Trustee Act, the personal representative will only be able to distribute the assets of the estate 21 days after the date of the last publication. See:

Section III A-3 Notice to Creditors and Others for the Notice itself; and

Section III A-2 for precedent letters:

Letter to B. C. Gazette (Re: Publication of Notice to Creditors); and

Letter to newspaper (Re: Publication of Notice to Creditors).

Although there is no legal requirement to publish this Notice, it is considered prudent to do so in order to protect the personal representative from any future claims which may be made by creditors after the estate has been distributed. In the case where the lawyer is the Executor, it is recommended that the Notice be published.

It is important to understand that creditors who have a valid claim against the estate may try to recover their debt at any time, even after the expiration of 21 days and after the estate has been distributed. The difference is that, if the personal representative does not advertise for creditors, he or she may be personally liable to the beneficiaries for any successful claim.

Please note that, according to the Interpretation Act, “newspaper” means a printed publication in sheet form, intended for general circulation, published regularly at intervals of not longer than a week, consisting in great part of news of current events of general interest. The supervising solicitor should be consulted before deciding in which newspaper to publish the Notice.



ASSEMBLE INFORMATION ON ASSETS

One of the main and most onerous tasks during pre-application is to determine the nature, description, value and location of, and the title to, all assets. This must be done to enable the preparation of an official list of the assets called Statement of Assets, Liabilities and Distribution (Disclosure Statement). All information regarding assets obtained from the personal representative must be verified by the law firm. The best way to elicit information from the asset holders is to request it in writing (see Section III A-2 for precedent letters). The confirmations obtained must be in writing – any telephone advice, for instance, must be followed up by a letter.

One should bear in mind that the value of the estate is like a frozen picture at the date of death notwithstanding what happens to the value of the assets after that date. For that reason, when writing letters to the various holders of assets, it is important that well-worded precedent letters be used in order elicit the right information. Unless the questions are clearly stated, the person answering your enquiry may give you the value as at the date of correspondence and not as at the date of death. An example would be money in a savings account. Only the balance as at the date of death will be shown as an asset of the estate. The interest between the time of death and the time of the request – which may be substantial – will not be included as an asset of the Deceased as it accumulated after the Deceased’s death. However, at a later date, this information may be required by the accountants in order to prepare the Income Tax Returns.

The following is the procedure to assemble information regarding assets commonly encountered in most estates:

Real estate

In order to determine the correct legal name in which the property is registered, the legal description and the status of Title, a Land Title Office search must be obtained, together with copies of financial encumbrances. A “name” search in the Land Title Office should also be conducted to determine whether there are any other properties in which the Deceased had an interest (both can be done through BCOnLine or the filing agent with whom your law firm has an account).

At this time, the value of the property must be determined. As with any other information for the estate, proof of such value must be in writing and may be obtained from: B.C. Assessment Authority (by obtaining a copy of the most recent Assessment Notice)

or through BCOnLine; or a real estate agent (a letter is sufficient); or a real estate appraiser (by ordering a formal appraisal).

In order to determine the net value of real property (or the Deceased’s equity in it), the balance owing under any charge (mortgage, Agreements for Sale or an agreement with respect to a Property or Land Tax Deferment Act Program) registered against the property must be ascertained. Usually, a letter or fax is written requesting such balance as at the date of death (see Section III A-2 Letter to mortgagee and Fax to Ministry of Finance & Corporate Relations - Land Tax Deferment Act Program).

Taxes deferred pursuant to the Land Tax Deferment Act Program (plus interest and administrative fees) must be paid when the property is transferred to a different owner, save and except a qualifying surviving joint tenant. To qualify, the survivor must be over 60, and the property must be his or her principal residence (to find out if a person qualifies see the government website: http://www.rev.gov.bc.ca/rtp/property_tax_deferment.htm).


If funds are available, the balance owing should be paid right away as the Ministry will only file a discharge of the Agreement when funds are received and the process may take some time – see Section III C-2 - Payout Letter Land Tax Deferment Program).

Banks or financial institutions

After obtaining the names and addresses of any banks or financial institutions from the personal representative:

Authorizations to Banks or Financial Institutions (see Section III A-2) should be prepared and signed by the personal representative;

letters should be written to them to ascertain: o the balances in all accounts or any other investments such as term

deposits, Guaranteed Investment Certificates, Treasury Bills, etc.; o amounts outstanding under any loans; and o whether or not there is a safety deposit box (see Section III A-2 – Letter

of enquiry to bank or financial institution).

Because of the Freedom of Information and Protection of Privacy Act 1996 ch. 16 and the Personal Information Protection Act SBS ch. 63 (Part 4), banks and financial institutions no longer release information to law firms on simple demand by the law firm but require an originally signed written authorization from the Executor as well as a notarially certified copy of the Will. In an intestacy, some banks accept the authorization signed by the prospective Administrator but most will only release the information when Letters of Administration have been obtained and provided to them. In such case, the Disclosure Statement wills show that the balances held by such bank are to be ascertained and a Supplementary Affidavit prepared and filed as well as additional probate fees paid when the information has been obtained (see Section III B-4 – Supplementary Affidavit).

Safety deposit box

Pursuant to Section 118.1 of the Estate Administration Act, the contents of any safety deposit box in the Deceased’s sole name – or owned jointly by the Deceased and any other party – must be listed by the custodian of the bank or trust company where the box is located. The listing can only be done in the presence of the personal representative.

Generally, the client will provide the law firm with such listing, but if no listing is available, the bank or financial institution should be contacted to determine if they will allow someone else to be present. A written authorization may be required for such purpose.

Once the list of the contents is prepared by the custodian, one copy should be:

kept in the safety deposit box for one year unless the lease to the box is terminated earlier;

given to the personal representative or lawyer attending the opening of the box; and

sent to the District Registrar of the Supreme Court in Victoria (this is attended to by the custodian).

The only documents which may be removed from the box are: the original or a copy of the Will, Birth, Marriage, and Death Certificates. The box may not be re-opened and



the contents removed from British Columbia until Letters Probate or Letters of Administration are granted.

Shares, bonds and securities

A letter should be written to the appropriate broker to determine the value (as at the date of death) of shares, Canada Savings Bonds and other securities (see Section III A-2 Letter to broker requesting valuation of securities).

The value of shares in a private company must be determined by that company’s accountants. However, the Articles of the company may provide for the shares to be transferred without obtaining Letters Probate or Letters of Administration.

Cheques

If there are any cheques payable to the Deceased, they should be returned to the issuing party with a request to change the payee to read “the Estate of (name of Deceased)” (see Section III A-2 Letter to the Department of Human Resources Development Canada).

Once the cheques are returned made payable to the estate of the Deceased, they should be deposited in an interest bearing account in the name of the estate opened by the law firm.

Banks will only open an account in the name of the Estate after Probate or Letters or Administration have been obtained. However, some banks will accept to deposit cheques payable to the Deceased in the Deceased’s bank account. The most convenient procedure regarding cheques payable to the Deceased and deposits should be discussed with the personal representative.

Insurance policies

A distinction should be made between the insurance policies where the proceeds are payable to a designated beneficiary and those payable to the estate. Only in the latter case are the proceeds included in the Statement of Assets, Liabilities and Distribution and form part of the assets. A letter should be written to the insurance company requesting the following:

the name of the payee (estate or designated beneficiary);

the amount of proceeds of the policy; and

the appropriate forms required to deal with the insurance policy;

(see Section III A-2 Letter to insurance company).

Motor vehicles

Usually, the personal representative will give you with the details, preferably by providing a copy of the Motor Vehicle Registration which contains the necessary information.

Pension plans, Superannuations, Registered Retirement Savings Plans and Registered Retirements Income Funds

As in the case of insurance policies, only the proceeds of those plans which are payable to the estate (or which do not have a designated beneficiary) will be included in the list of assets. It is important to obtain written confirmation regarding the plan, and specifically, if there is a designated beneficiary (see Section III A-1 Letter to trustee of pension plan or Registered Retirement Savings Plan).


Employment benefits

If, at the time of death, the Deceased was employed or retired from previous employment, he or she may be entitled to benefits provided by the former employer. The personal representative should supply you with information regarding such employment. The benefits must be ascertained as they form part of the assets (see Section III A-2 Letter to employer).

On the other hand, wages owing and accrued to the Deceased for a period of three months prior to death are payable to the widow or widower of the Deceased, free from debts of the Deceased (see Part 13 of the Estate Administration Act).

Income Security Programs

The following benefits under the income security programs (Canada Pension, Human Resources Development Canada or Old Age Security) may be available:

lump sum death benefit which is payable to the Deceased’s estate;

monthly pension payable to the surviving spouse of a deceased contributor; and

flat rate monthly orphan’s benefits provided for the children of a deceased contributor who are under the age of 18 or who are between the ages of 18 to 25 years and in full time attendance at school or university.

Usually, the personal representative will obtain and complete the necessary forms to apply for those benefits, and provide the appropriate Government office with the required documents (such as Birth and Marriage Certificates).

ASSEMBLE INFORMATION ON DEBTS AND LIABILITIES

The next task is to determine the nature, description and the status (whether paid or unpaid) of all of the debts of the Deceased. This is very important as the personal representative is personally liable for debts incurred with respect to the death (such as funeral expenses) and may be personally liable for the debts of the Deceased to the extent of the assets coming into his or her hands.

The personal representative should provide you with the information regarding the debts and liabilities of the Deceased. These may include:

funeral expenses;

debts which are payable immediately (such as BC Hydro, BC Tel, amounts pursuant to credit cards, etc.);

contingent liabilities such as guarantees and pending law suits;

continuing liabilities such as spousal and child maintenance, amounts owing under a mortgage or a loan.

In an application for Letters of Administration, if a debt is listed as unpaid, the written consent of the creditor must be obtained and filed with the Probate Registry.



ASCERTAIN STYLE OF PROCEEDING

The style of proceeding (formerly known as the “style of cause”) is the heading of a Court document. Although the documents are not being prepared right now, it is important to anticipate what the style of proceeding will be. In a Probate application it looks as follows:

No. ________________ VANCOUVER REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

RE: ESTATE OF JOSEPH PATRICK BLOE, DECEASED

Court file number This is the number assigned to the Court’s file when it is opened. When typing the first documents of an application, this number is not yet available as it will be stamped on the originating documents when they are filed in the Registry.

Registry name This is the location of the Probate Registry where the documents are filed.

Court name In British Columbia, all Probate applications are made in the Supreme Court of British Columbia. The Court’s name is usually centered and may be bolded.

Title The title identifies the person whose estate is being probated. The name of the Deceased must be identical to the name in the Search of Wills Notice.

The Deceased may have been known by several names or the Deceased’s assets may have been registered in several names (or several variations). For example, a married woman may have assets registered in her maiden name, in her married name and perhaps in her second married name. Sometimes, the different name variations are the result of misspelling or clerical error.

The names used in the style of proceeding should be in the following order: the name in the Will – whether or not this was the Deceased’s proper name; any other names the Deceased may have used, such as a maiden or married

name; and/or any names which may appear on titles to assets – such as the Certificate of Title

issued by the Land Title Office.

When several names are used, they should be shown as set out below, with the name of the Deceased as shown in the Will (if there is one) being listed first:

“JOSEPH PATRICK BLOE, also known as JOE PATRICK BLOE, also known as JOSEPH PAT BLOE”.

It is acceptable to use “a.k.a.” instead of “also known as” or “o.k.a” instead of “otherwise known as”.

The name of the document appears immediately under the style of proceeding, and is usually centered, underlined and bolded. Such name – as Requisition, Affidavit or Order – does not form part of the style of proceeding.


If a different name is not included in the style of proceeding, a Statutory Declaration (see Section III C-3 Statutory Declaration regarding variation in the name of Deceased) will be required at a later date to deal with the asset which is registered in this different name. There is an exception, however. The Land Title Office no longer accepts a Statutory Declaration and an application will have to be made to amend the Grant to include the missing name.

It is a good idea to save the style of proceeding (minus the name of the document) – as a separate computer file and retrieve it every time a new document is typed. This will ensure consistency and save a lot of time and errors. It helps to always give the file the same name, e.g. “style” in order to facilitate such retrieval.

PROBATE

Letters Probate (or Probate) are applied for if the Deceased left a valid Will – died testate. Probate is the procedure to validate a Will and confirm the appointment of an Executor. This is achieved by submitting an application to the Probate Registry. In depth information and more extensive instructions regarding the preparation of each document are set out in Section III B-1.

The Grant of Letters Probate is a certificate issued by the Court which confirms that:

the Will of the Deceased (as submitted to the Court) is valid;

the Executor is the proper person to administer the estate.

In the Court documents, the person applying for Letters Probate is called “the applicant”, and will become the Executor (or as referred to in this Guide as “personal representative”) once the Grant of Letters Probate is obtained.

The person(s) named as Executor(s) in the Deceased’s Will are entitled to apply for Probate. If several levels of persons are named, those named first apply. If the first named Executors are unable or unwilling to apply, the second level applies, etc. All those applying must justify their entitlement or right to apply. Accordingly, if there is someone ahead of the applicants who is not applying, the applicants have to “clear off” those having a prior or equal right to apply and so inform the Court by stating the reasons. This information is included in the Affidavit (Oath) of Executor (see below). For example, the person with a prior right to apply is either:

deceased (the Court usually does not ask for proof of death); or

has renounced the right to apply. If this is the case, a written Renunciation must be obtained from that person;

chooses not to apply but does not renounce. The application will be made subject to that person reserving the right to apply at a later date.

The following is a summary of the documents which will have to be prepared and the steps which have to be attended to in order to apply for Letters Probate. More detailed information regarding the preparation and processing of each document is shown in the appropriate Section of this Guide. Although it may seem that the procedure is explained twice, the information set out below describes the flow of the file – the big picture – whereas the information in Section III – explains how the documents are prepared. Obviously, one must have all the information on hand in order to complete the necessary documents. However, if you are totally unfamiliar with estates, it is a good idea to peruse Section III pertaining to the proposed application and become familiar with the documents.



Renunciations

If a person named as Executor in the Deceased’s Will is unable or does not wish to act as Executor, that person must sign a Renunciation form (see Section III A-3 Renunciation of Probate).

If two (or more) people are named as co-executors in the Will, and one (or more) does not wish to apply at this time, but may wish to apply in the future, the remaining Executor(s) may apply for Probate reserving the right of the other Executor to apply at a later date (see notes on the preparation of Affidavit (Oath) of Executor in Section III B-1). If the first Executor (who did not apply) wishes to apply at a later date, a second Grant will be issued.

Notice of Intention to Apply

The Estate Administration Act requires the applicant to certify that: a Notice of Intention to Apply for Letters Probate pursuant to Section 112

indicating that the person signing the Notice is applying for Letters Probate (see Section III A-3 Notice of Intention to Apply); and

a copy of the Will;

have been mailed or delivered to everyone (other than the applicant) who is: a beneficiary or contingent beneficiary named in the Will; the surviving spouse (or spouse who has been separated from the Deceased for

not less than one year immediately before the Deceased’s death); the children of the Deceased; the children of deceased children; common-law spouse (see Section 1 of the Estate Administration Act); illegitimate children; and if none of the above exist, all persons who would be entitled to share in the

estate or a portion thereof on an intestacy or partial intestacy (see Intestacy explained).

All beneficiaries named in the Will must receive a copy of the Notice even if the assets bequeathed no longer exist. The Notice may be mailed by the law firm on behalf of the personal representative (see Section III A-2 Letter forwarding Notice pursuant to Section 112 of the Estate Administration Act).

In addition, if a person entitled to Notice is either a minor, a mentally disordered (or incompetent) person or a person who has a representative, the letter enclosing a copy of Notice and a copy of the Will must be sent: if a minor: to the lawful parent or guardian of the minor; or if a person is mentally disordered or has a representative: to such

representative; in both cases: to the Public Guardian and Trustee of British Columbia (see

Section III A-2 Letter to Public Guardian and Trustee (if minors or mentally disordered persons are involved). Section 112 (8) of the Estate Administration Act further provides that a Notice to the Public Guardian and Trustee of British Columbia shall be accompanied by copies of all documents to be filed with the Court with respect to the application for a Grant (of Letters Probate or Letters of Administration) or resealing. However, in the case of Probate, there is no requirement for the Court to receive the Public Guardian and Trustee’s comments before a grant of Letters Probate is issued.


For more detailed explanation and discussion regarding the entitlement to Notice, see General Notes opposite the Affidavit Pursuant to Section 112 in Section III B-1.

Affidavit pursuant to Section 112 This document is sworn by the applicant to certify that the following documents have been sent to the various beneficiaries and those entitled to Notice pursuant to Section 112 of the Estate Administration Act: the Notice of Intention to Apply (see above); and a copy of the Will.

Affidavit of Executor (or Oath of Executor) (Form 91) This document is also sworn by the applicant as Executor named in the Will. Principally, it: identifies the Executor(s); has the original Will and Codicil attached; and has the Statement of Assets, Liabilities and Distribution attached.

Statement of Assets, Liabilities and Distribution (or Disclosure Statement) This document – which is Exhibit “B” to the above Affidavit (Form 91) – discloses: the description and value of the Deceased’s assets which pass to the Deceased’s

personal representative and all debts (whether paid or unpaid); and the distribution of the estate. All information regarding the description of the assets and their values must be properly completed. As explained above (Assemble information on assets), obtaining all information may be time-consuming. If there is some urgency in obtaining a Grant of Letters Probate, and the value of an asset or debt listed in the Inventory cannot be ascertained at the time of preparation of this document, the Probate Registry will reject any application where: a statement that the value is “not yet ascertained” is included. However, a letter

may be written to the Registry explaining the reason why the value of such asset is not determined at this time and why Probate is needed in a rush. At a later date, a supplementary Affidavit should be prepared and filed when the information is available. At that time, additional fees may have to be paid;

there are any blanks as the Probate Registry will assume that information has been forgotten.

There are four parts to the Statement of Assets, Liabilities and Distribution:

Part I – Real property This part must list all real property (relating to land), including: any interest of the Deceased in Fee-Simple, Agreements for Sale (both Vendor’s and Purchaser’s Interest) and mortgages held by the Deceased, except any property held in joint tenancy.

Part II – Personal property This part must list all assets other than real property or assets not included in Part I, for example: cash and money on hand, cheques and funds held by the Deceased in banks or other financial institutions, life insurance policies, annuities, pensions and death benefits such as Canada Pension Plan, Old Age Pension and Veteran’s Pension, book debts, promissory notes or any other debts owing to the Deceased, securities for money, bonds, stocks and shares, motor vehicles, boats, and motor homes.



The gross value of the estate is the total of Parts I and II. It is important to remember that the debts of the estate are not deducted from the gross value of the estate. The Probate fees are calculated on the gross value (not taking into account any debts). The manner in which those fees are calculated is set out in Section IV D Fees.

Part III – Debts and liabilities This part must list all debts owing (bank loans, balance owing on credit cards, outstanding utility bills, hospital, doctors, ambulance and funeral accounts, income tax, etc.).

Part IV – Distribution of estate This part must list: the names of all beneficiaries; their relationship to the Deceased (son, widow, friend, stranger, etc.);

and the value or nature of estate they will receive.

Section III B-1 contains extensive notes regarding the preparation of the Statement of Assets, Liabilities and Distribution and gives a detailed list of all information required by the Probate Registry for each asset as well as the manner in which such information should be shown.

Requisition (formerly, Praecipe) This is a written request addressed to the Court and it lists: what is required (generally, the Grant, and copies of any documents); and the documents submitted with the application for Letters Probate.

File documents with Registry The Probate Registry is extremely strict about the manner in which the application documents are filed. As a large percentage of applications received by the Registry are rejected, a detailed memorandum with respect to filing requirements is included after Section III B-1. This memorandum should be reviewed each time documents are submitted to the Probate Registry for filing.

If one of the Affidavits is incomplete or a document is not correct, it is usually acceptable to file a supplementary affidavit sworn by the supervising lawyer disclosing the missing information or correcting the defective document as the Probate Registry may advise. Orders must, and Affidavits should, have backing sheets (see Section III B-1 Backing sheet).

Fees payable When the Probate documents are approved by the Probate Registry, their office will telephone the law firm requesting the amount of fees. The cheque must be made payable to the order of the Minister of Finance (see Section IV D).

If the amount of fees is substantial, the law office may not wish to disburse the funds out of its general account. A certified cheque or money order should be obtained from the client, payable to the order of the Minister of Finance in the required amount.

Note: The receipt for payment of probate fees attached to the Grant (Letters Probate, Administration, etc.) should be safeguarded as, if there is an overpayment of fees, it will be required for a future refund.


LETTERS OF ADMINISTRATION (without Bond)

Letters of Administration without bond are applied for when:

a person dies without leaving a Will (intestate);

all debts have been paid or all unsecured creditors have consented to the application;

there are no infants or mentally disordered persons beneficially interested in the estate; and

all persons beneficially interested in the estate have consented to the application without bond.

In depth information and more extensive instructions regarding the preparation of documents for this application are set out in Section III B-2.

Sections 6, 7, 40 and 41 of the Estate Administration Act govern the order of the persons entitled to apply for Letters of Administration. Basically, one (or several) of the following are entitled:

surviving spouse (including common-law spouse) and/or heirs-at-law (see Intestacy explained above) or person who has the greatest interest in the estate; or

Public Guardian and Trustee; or

official Administrator; or

stranger.

If a person in the order prescribed does not apply for Letters of Administration, that person must renounce such right and the next person in the intestacy list will then apply. All those applying must validate their entitlement by reciting in the Affidavit of Administrator the reason why they are applying because:

either the person(s) entitled to apply ahead of them – or person(s) with an equal right to apply – have predeceased the Deceased; or

Renunciations and Consents have been obtained from the persons renouncing their right to apply.

For example, suppose the Deceased died leaving a widow and three children, and one of the children is applying. The widow and the other two children must renounce their right to apply and sign Renunciations.

Part 10 of the Estate Administration Act (as set out previously in Intestacy explained) should be read to determine how the estate will be distributed.

The procedure for applying for Letters of Administration is similar to that of Letters Probate, except that, instead of the Executor, there is an Administrator. A summary of the required documents with the appropriate changes (from the documents referred to above in Probate) is as follows:

Renunciations and Consents

Renunciations and Consents to the Granting of Letters of Administration, must be signed by those persons with a prior or equal right to apply (as explained above) (see Section III A-3 Renunciation of Administration and Consent) and Consents must be obtained from all unpaid creditors.




The Estate Administration Act requires that the Notice be sent to the following who (other than the applicant) are:

the spouse (or spouse who has been separated from the Deceased for not less than one year immediately before the Deceased’s death);

the children;

the children of deceased children (if any);

the common-law spouse;

illegitimate children; and

if none of the above exist, all persons who would be entitled to the estate or a portion thereof on an intestacy or partial intestacy (see Intestacy explained).

In addition, if a person entitled to Notice is either a minor, a mentally disordered (or incompetent) person or a person who has a representative, the letter enclosing a copy of Notice must be sent:

if a minor: to the lawful parent or guardian of the minor; or

if a person is mentally disordered or has a representative: to such representative;

in both cases: to the Public Guardian and Trustee of British Columbia (see Section III A-2 Letter to Public Guardian and Trustee of British Columbia (if minors are involved). Section 112 (8) of the Estate Administration Act further provides that a Notice to the Public Guardian and Trustee of British Columbia shall be accompanied by copies of all documents to be filed with the Court with respect to the application for a Grant.

For more detailed explanation and discussion regarding the entitlement to Notice, see General Notes opposite the Affidavit pursuant to Section 112 in Section III B-2.

Request for Public Guardian and Trustee’s comments

Section 112 (5.1) of the Estate Administration Act provides that, when a person is a minor or is, or may be, mentally disordered or has a representative, “...a court must not grant or reseal letters of administration unless the applicant ... provides to the court the written comments of the Public Guardian and Trustee in respect of the matter.” The Act further provides that the applicant must give reasonable notice of the application to the Public Guardian and Trustee. However, if a Grant must be obtained quickly and before the Public Guardian and Trustee is able to provide the Court with his written comments, the Court may make any Order that it considers advisable in the circumstances.

Where appropriate, on the recommendation of the Public Guardian and Trustee, the Court may require the applicant to post a bond (see Letters of Administration with Bond)

Affidavit pursuant to Section 112

This document is sworn by the applicant to certify that a copy of the Notice of Intention to Apply has been sent to those entitled to Notice pursuant to Section 112 of the Act (see above Notice of Intention to Apply).


Affidavit of Administrator (Form 70)

This document is also sworn by the applicant as Administrator. Principally, it:

identifies the Administrator(s); and

has the Statement of Assets, Liabilities and Distribution attached.

If there are any unpaid debts (except mortgages), they must be listed in this Affidavit and consents from all unpaid creditors must be obtained and submitted with the application (see Section III A-3 Creditor’s Consent).

Statement of Assets, Liabilities and Distribution (or Disclosure Statement)

This document – which is Exhibit “A” to the Affidavit of Administrator (Form 92 above) – discloses:

the description and value of the assets and debts of the Deceased; and

the distribution of the estate.

This Statement is identical for all three applications (see description in the Probate Section above).

If any unpaid debts are listed, see above Affidavit of Administrator.

Order

This document is required because it is the Court and not the Will which appoints the Administrator. Letters of Administration will only be issued when the Order is approved and entered.

Requisition (formerly, Praecipe), file documents with Registry and fees payable

See Probate



LETTERS OF ADMINISTRATION WITH WILL ANNEXED

Letters of Administration with Will annexed are applied for (instead of Letters Probate) when a person dies with a Will (testate) but:

the Will fails to name an Executor; or

all Executors named in the Will have predeceased the Deceased; or

all Executors named in the Will have renounced their right to act as Executors.

This situation is a “blend” of the two previous applications. Similarly to Letters of Administration, as there is no Executor, the Court will appoint the Administrator but, as in the Letters Probate, the estate will be distributed according to the instructions contained in the Will. All documents necessary for this application are set out in Section III B-3.

Sections 6, 7, 40 and 41 of the Estate Administration Act govern the order of the persons entitled to apply for Letters of Administration with Will annexed. Basically, one (or several) of the following are entitled to apply:

residuary beneficiary or person who has the greatest interest in the estate; or

heirs-at-law (see Intestacy explained above); or

attorney or representative of Executor; or

specific beneficiary; or

Public Guardian and Trustee of British Columbia; or

official Administrator; or

stranger or common-law spouse.

If a person in the order prescribed does not apply, that person has to renounce such right to apply and the next person in the intestacy list will then apply for Letters of Administration. All persons applying must validate their entitlement by reciting in the Affidavit of Administrator the reason why they are applying because:

either the person(s) entitled to apply ahead of them – or persons with a greater or equal right to apply – have predeceased the Deceased; or

Renunciations and Consents have been obtained from the persons renouncing their right to apply.

For example, the Deceased died leaving a Will which named his friend Peter and his nephew John as Executors. Peter has predeceased the Deceased and John is unable to apply. The Deceased was survived by his widow and three children, and one of the children is applying. In the Affidavit of Administrator (Form 93), the Administrator would have to recite that:

Peter has predeceased the Deceased;

John is unable to apply and his Renunciation is attached to the application;

the widow is not applying and her Renunciation is attached to the application;

the two children are not applying and their Renunciations are attached to the application; and

the remaining child is, therefore, the applicant.


Bearing in mind that the procedure for applying for Letters of Administration with Will annexed is a combination of the applications for Letters Probate and Letters of Administration, the following is a summary of the required documents:

Renunciations and Consents

Renunciation and Consents forms must be signed by the following persons:

a person (or persons) named in the Will as Executor(s) if that person is unable or does not wish to act as Executor; and

those persons with a prior or equal right to apply – as explained above (see Section III A-3 Renunciation of Administration and Consent).

In addition, Consents must be obtained from all unpaid creditors.


This Notice must be sent to everyone (other than the applicant) who is:

a beneficiary, or contingent beneficiary named in the Will;

the spouse (or spouse who has been separated from the Deceased for not less than one year immediately before the Deceased’s death);

the children of the Deceased;

the children of deceased children;

common-law spouse;

illegitimate children;

if none of the above exist, all persons who would be entitled to the estate or a portion thereof on an intestacy or partial intestacy (see Intestacy explained).

All beneficiaries named in the Will must receive a copy of the Notice even if the assets bequeathed no longer exist.

In addition, if a person entitled to Notice is either a minor, a mentally disordered (or incompetent) person or a person who has a representative or a substitute decision maker or guardian, the letter enclosing a copy of Notice and a copy of the Will must be sent:

if a minor: to the lawful parent or guardian of the minor; or

if a person is mentally disordered or has a representative: to such representative;

in both cases: to the Public Guardian and Trustee of British Columbia (see Section III A-2 Letter to Public Guardian and Trustee of British Columbia (if minors are involved)). Section 112 (8) of the Estate Administration Act further provides that a Notice to the Public Guardian and Trustee of British Columbia shall be accompanied by copies of all documents to be filed with the Court with respect to the application for a Grant (of Letters Probate or Letters of Administration) or resealing.

For more detailed explanation and discussion regarding the entitlement to Notice, see General Notes opposite the Affidavit of Pursuant to Section 112 in Section III B-3).



Request for Public Guardian and Trustee’s comments

Section 112 (5.1) of the Estate Administration Act provides that, when a person is a minor or is, or may be, mentally disordered or has a representative, “...a court must not grant or reseal letters of administration unless the applicant ... provides to the court the written comments of the Public Guardian and Trustee in respect of the matter.” The Act further provides that the applicant must give reasonable notice of the application to the Public Guardian and Trustee. However, if a Grant must be obtained quickly and before the Public Guardian and Trustee is able to provide the Court with his written comments, the Court may make any Order that it considers advisable in the circumstances.

Where appropriate, on the recommendation of the Public Guardian and Trustee, the Court may require the applicant to post a bond (see Letters of Administration with Bond)

Affidavit pursuant to Section 112

This document is sworn by the applicant to certify that the following documents have been sent to the various beneficiaries and those entitled to Notice pursuant to Section 112 of the Act (see above Notice of Intention to Apply): the Notice of Intention to Apply (see above); and a copy of the Will.

Affidavit of Administrator (Form 93)

This document is also sworn by the applicant as Administrator. Principally, it:

identifies the Administrator(s); has the original Will and Codicil attached; and has the Statement of Assets, Liabilities and Distribution attached.

If there are any unpaid debts (except mortgages), they must be listed in this Affidavit and consents from all unpaid creditors must be obtained and submitted with the application (see Section III A-3 Creditor’s Consent).

Statement of Assets, Liabilities and Distribution (or Disclosure Statement)

This document discloses: the description and value of the assets and debts of the Deceased; and the distribution of the estate.

This Statement is identical for all three applications (see description in the Probate Section above).

If any unpaid debts are listed, see above Affidavit of Administrator.

Order

This document is required because it is the Court and not the Will which appoints the Administrator. Letters of Administration will be issued only when the Order is approved and entered.

Requisition (formerly, Praecipe), file documents with Registry and fees payable

See Probate


LETTERS OF ADMINISTRATION (WITH BOND)

An Administrator may be required to provide the Court with a surety (termed “post a bond”) for the performance of the administrator’s duties. This is particularly the case where there are infants or mentally disordered persons beneficially interested in the estate.

A bond is an insurance agreement whereby the administrator (as principal), and an insurance company (as surety) guarantee to a third party (oblige – or in this instance, the Court) the performance of the administrator’s duties. A bond may be applied for through an insurance broker (or agency) who will instruct the insurance company on the bond’s requirements. The cost of the insurance premium for the bond is usually paid out of the assets of the estate.

In the unlikely event that the administrator defaults and the insurance company is required to pay to have the duties completed, the insurance company will look to the administrator to recover its losses. Therefore, prior to issuing the bond, the insurance company will want to be assured that administrator has sufficient assets from which it can look to be reimbursed.

Take note that the Court has power to dispense with a bond when:

there are no infants or mentally disordered persons beneficially interested in the estate;

there are no debts for which the estate is or may be liable;

the estate is of small value;

the administrator is the beneficiary;

all parties who are, or may be, beneficially interested in the estate (including unpaid creditors) have consented in writing to an application without bond; or

a Trust Company is the administrator.

In these cases, Letters of Administration (or Letters of Administration with Will Annexed) without bond are applied for.

Section 16 (3) of the Estate Administration Act provides that “Bonds must be in a penalty of double the amount under which the estate of the deceased is sworn, unless the court directs them to be reduced.” In practice, the amount of the bond is set by the Office of the Public Guardian and Trustee and is generally the amount of the aggregate of the infants’ shares in the estate (for example, if there are two infants, each with a $35,000 share in the estate, the total bond would be $70,000). The bond must be posted for the entire length of the estate administration.

The procedure for applying for Letters of Administration (with Bond) is similar to that of Letters of Administration (without Bond), except for the additional steps as set out in Section III B-4 (Letters of Administration (with Bond). You can follow the information and instructions regarding the preparation of documents set out in the chapters “Letters of Administration without Bond” and “Letters of Administration with Will Annexed” above and in Sections III B-2 and III B-3.

In addition, please note that, in certain limited circumstances, the Public Guardian and Trustee may recommend alternate security such as a restriction on sale of real property instead of a bond. Their position is that such a restriction is not appropriate where the real property will be



sold within the Administrator’s year (the year following the issuance of the Grant) because the additional legal expenses relating to the registration of the restriction and release of the resulting injunction may exceed the cost of the bond.

In order for the restrictions to be effective, the Administration Order must include the wording of the restriction and a notation that the Court Order will be registered as a charge against the real property pursuant to Section 284 of the Land Title Act, RSBC 1996, c.250. This would create an injunction which restricts dealings with the real estate property. The application to register the Court Order with the Land Title Office is made by way of a Form 17 and must be accompanied by a court certified copy of the Court Order. This injunction would then appear on title searches.

When the property is being sold, before completing the sale, arrangements must be made to pay the sale proceeds to the Estate Solicitor who, in turn, must give his or her written undertaking to the Public Guardian and Trustee to pay the net sale proceeds to their office, in trust for the minor.

Once this arrangement is in place, the Public Guardian and Trustee will provide a letter to the Estate Solicitor for submission to the Land Title Office stating that the Public Guardian and Trustee does not object to the restriction on title being lifted. This will enable the registration of the conveyancing documents.

RESEALING A FOREIGN GRANT

When a Grant – whether Probate or Letters of Administration – has been obtained in jurisdictions declared to be reciprocating states pursuant to the Probate Recognition Act (see list of reciprocating states attached to the Probate Recognition Act:

http://www.qp.gov.bc.ca/statreg/reg/P/pr_list.htm);

in order to transfer and transmit an asset of the Deceased located in British Columbia (especially an interest in land), the foreign Grant must be brought to B.C. This procedure is called “resealing”, which means obtaining the foreign Grant, filing it with a Probate Registry in B.C., and having it certified and “sealed” by the B.C. Supreme Court. In this regard, you should familiarize yourself with Rules 21-5 (59) to (69) of the B.C. Supreme Court Civil Rules.

The procedure to reseal a foreign Grant is set out in Section III B-4.

Please note that if the foreign Grant has been obtained in any other foreign jurisdiction not recognized pursuant to the provisions of the Probate Recognition Act, an Ancillary Grant is applied for.

When a B.C. resident is nominated by a foreign representative to reseal the Grant, a special Power of Attorney must be prepared and signed by the personal representative in favour of the British Columbia resident. This results in an application by Attorney - see below.

SECOND GRANT

A second Grant appointing a new Executor is applied for when the administration of an estate is not completed and:


the sole or the last surviving Executor dies before completing the administration of the estate; and an alternate Executor is named in the Will of the Deceased; or

one of the Executors appointed in the Grant dies before completing the administration of the estate and the Will states that if one of the Executors dies, the alternate executor named in the Will must replace the deceased Executor; or

the number of executors falls below a minimum required by the Will of the Testator and there is an alternate executor named in the Will.

On the other hand, if two Executors are appointed and Will states both Executors must die before the alternate named in the Will is appointed, then, if one of the Executors dies, the surviving Executor continues to act.

The requirement for a second grant depends on the wording in the Will of the Deceased and the nature of estate assets still unadministered.

The procedure to apply for a second Grant is set out in Section III B-4.

ADMINISTRATION DE BONIS NON

A Grant of Letters of Administration de Bonis Non appointing a new personal representative is applied for if a portion of the estate remains unadministered and:

the chain of executorship does not apply (the personal representative dies intestate); and

all executors named in the Will (including those to whom power was reserved) are cleared off (because they predeceased, renounced or are unable or unwilling to act).

Depending on the original Grant, the following will be issued to a new personal representative in order to complete the administration of the estate:

Grant of Letters of Administration de Bonis Non

If there was no Will and the original grant was a Grant of Letters of Administration.

Grant of Letters of Administration de Bonis Non with Will Annexed

If there was a Will and the original Grant was either a Grant of Letters Probate or Letters of Administration with Will Annexed.

The procedure to apply for a Grant of Letters of Administration de Bonis Non is set out in Section III B-4.

LETTERS OF ADMINISTRATION BY ATTORNEY

Letters of Administration by Attorney are applied for when:

no foreign grant is obtained when:

a Will exists; and

the Executor named in the Will resides outside British Columbia;.



the executor may appoint a B.C. resident to act as his or her attorney to obtain a Grant of Letters of Administration with Will Annexed (without first obtaining a foreign Grant) (Rule 21-5 (27) of the Rules of Court); or

a foreign Grant was issued by a court of competent foreign jurisdiction and the Grant can be resealed in British Columbia pursuant to the Probate Recognition Act but the personal representative appointed by such Grant:

resides outside British Columbia; and

has reasons not to reseal the Grant in British Columbia in his own name (e.g. it is impractical and inconvenient for him to do so);

then the personal representative may appoint a B.C. resident to act as his or her attorney to obtain a Grant of Letters of Administration or Letters of Administration with Will Annexed (depending on whether or not there is a Will) in British Columbia; or

a foreign Grant was issued by a court of competent foreign jurisdiction and the Grant cannot be resealed pursuant to the Probate Recognition Act (that is a jurisdiction that is not one listed in the Schedule to the Probate Recognition Act). Instead of applying for an ancillary Grant (see below) in his own name, the personal representative appoints an attorney in British Columbia and applies for a grant of administration by attorney which is limited to the estate of the deceased in British Columbia. The Order will state the specific purpose for which the Grant is obtained (Rule 21-5 (59)).

All Grants by Attorney are conditional until an ancillary Grant (see below) is applied for (which rarely happens).

OTHER LESS COMMON APPLICATIONS

There are several other applications, among others:

Ancillary Probate when the Deceased died in another jurisdiction not recognized pursuant to the Probate Recognition Act – any jurisdiction outside Canada, the United Kingdom and the British Commonwealth;

Letters of Administration ad Colligenda Bona where there is a delay in the appointment of an administrator and certain estate assets must be protected or dealt with. This Grant is limited to collecting and preserving certain assets and has a time limit until the actual Grant is obtained.

Double Probate when:

several Executors were named in the Will;

one of them did not apply (the “non-proving Executor”) and did not sign a Renunciation; and

the other Executor(s) applied reserving the right of non-proving Executor to apply at a later date;

the non-proving Executor may either renounce or apply for an additional grant after the initial grant and before the administration of the estate has been completed.

These applications are fairly rare and are beyond the scope of this Guide (see the Bibliography in Section IV E for reference materials with respect to these applications).

Guide to Wills and Estates Section III A-1 1 PreWESA/Pre-Application Procedure 1.pdf · Guide to...

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Transcript of Guide to Wills and Estates Section III A-1 1 PreWESA/Pre-Application Procedure 1.pdf · Guide to...