Probate Step 1 – the last will
- Explaining the first step of applying for an estate grant: Searching to ensure that if there is a will, you have the deceased’s last will
The Sound of Music is one of my movie favourites. Up there with The Princess Bride. One of the scenes has Maria teaching the children how to sing with a song that opens: “Let’s start at the very beginning”.
I was going to start this column with those opening words, but realized that there might be a generation or two of folks who have never seen the movie, which was released in 1965. Though unlikely as all heck that any of those young folks would be reading this column!
This is the first of a series where I hope to demystify the various steps of applying for an estate grant.
An estate grant is a court order giving authority to one or more folks (executor(s) or administrator(s)) to deal with the deceased’s assets. It’s the equivalent of a power of attorney, but after death.
Most people refer to it as “probate”, though depending on whether there’s a will or whether a named executor is making the application, it might technically be called a grant of probate or a grant of administration.
The “very beginning” of the process is taking all reasonable steps to search for deceased’s last will.
It’s an important first step, particularly given British Columbia law that says that any document, physical or even electronic, can be “cured” to be a deceased’s last will if the court is satisfied that it sets out the deceased intentions for how their estate is to be dealt with.
That’s even if it’s not labeled “will”, and doesn’t have anything of a signature, let alone witnesses.
I’ve written specifically about the “curing” of technically invalid wills some months ago. If you have trouble finding my column on the subject, let me know and I’ll send you the link.
One of the documents you will be submitting to the court registry when applying for an estate grant will be an affidavit where you swear or affirm that a diligent search has been conducted. This paragraph is copy/pasted from one version of such an affidavit:
“I am satisfied that a diligent search for a testamentary document of the deceased has been made in each place that could reasonably be considered to be a place where a testamentary document may be found, including, without limitation, in all places, both physical and electronic, where the deceased usually kept important documents and that no testamentary document that is dated later than the date of the will has been found.”
What to do if you find a document that’s not a properly signed or witnessed will, but sets out the deceased’s wishes? Give me a call and I’ll try to help you out.
One important, and mandatory, way to look for the deceased’s last will is by doing a search of the Wills Registry, which is a Vital Statistics registry where a notice can be filed giving the whereabouts of a person’s will. I’ve written specifically about that registry some months ago as well if you are unfamiliar with it.
The results of the search are not conclusive, because there’s no requirement to file notice of your will with the registry. And you might know for certain that the will your parent handed to you the week before they died is their last will, but it is mandatory to conduct that search and file the results with the court registry, in duplicate.
How do you search the Wills Registry? Easy peasy. Use “BC Wills Registry” as your browser search and you’ll be taken to a page with easy-to-follow instructions.
Hot tip: pay the $33.00 rush fee, which will give you a result within 3-5 days instead of 3 weeks.
When submitting your search to the Wills Registry, you will need to fill out a form that includes the deceased’s date and city of birth and of death, the deceased’s full legal name and any other names the deceased might have gone by, i.e. any aliases.
Look for aliases anywhere the deceased has assets, i.e. on bank statements, vehicle registrations, land title registrations, investment accounts, mobile home registrations, etc.
The deceased might have dropped one of their middle names, used an initial, used a shortened version of their name or changed their name through marriage or divorce.
Odd as it might seem, the deceased might even have used an alias on their own will! That happens more often than you might think. Look not only for the typed version of their name but also how they signed the will.
Each alias adds another $5.00 to the cost of the search, but it’s worth it. Failure to include an alias might delay your application if the court registry makes you conduct another search or make your successful estate grant useless to transfer an asset that’s in the name of an alias.
After all of that searching, it might turn out that the deceased doesn’t have any will at all. No worries. The process of applying for an estate grant is very similar with or without a will. Tune in next week for the next steps in that process.
Back to The Sound of Music: if you’ve not seen it, make a massive batch of stove-top popcorn and settle in for a 2 hour and 52 minute amazing experience. If you don’t know how to make stove-top popcorn, you deprived soul, reach out to me on Facebook and I’ll link you to my video tutorial!
