Probate Step 2 – Who applies and giving notice
- Explaining that there is flexibility about who applies for an estate grant, i.e. you’re not necessarily stuck with a named executor having to do the job
- Noting that executor/administrator fees should be considered when deciding who will apply
- Giving the form of notice that must be given, who must receive it and how the notice can be issued 21 days before submitting an estate grant application
This is part 2 of a series about applying for an estate grant, which most people refer to as “probate”. My goal is to help those struggling to do this on their own – without hiring a lawyer. A fringe benefit for the rest of you is that understanding the probate side of things can help with estate planning.
This week I will discuss determining who makes the application and giving notice.
Typically, it’s the named executor(s) in the will would apply for the estate grant. But that’s not always the case.
The named executor might have died. Or is no longer willing or capable of taking on the role.
Maybe it’s a home-made will with no executor appointed at all.
Section 131 of the Wills, Estates and Succession Act (the “Act”) gives a priority list of people who can apply for an estate grant in these circumstances. Anyone can take on that role with the agreement of the beneficiaries.
Another scenario might be that your dad’s very old will names his sister, now aged 85, to be his executor because at the time he made his will you and your siblings were toddlers. With your aunt’s agreement, you and your siblings could decide that one of you will take on the role.
Yet another is that your dad named all three of his children to be his executors. To avoid added administrative hassle that comes with multiple executors, you and your siblings might agree that only one of you will take on the executor role.
Keep this flexibility in mind if you find yourself considering the expense of creating a new will for the sole purpose of changing your executor. Note that I’ve written a couple columns with “do it yourself” instructions about how to change your will if you want to change executors on the cheap.
If there’s no will, section 130 of the Act gives a priority list of people who the court can issue the estate grant to. There’s flexibility, i.e. anyone can apply for the estate grant with the agreement of those with an interest in the estate.
One important factor when making deciding who will take on the administrator role in these circumstances is executor or administrator fees. Nail down what the chosen applicant will be paid, if anything, as part of the decision-making process. If you don’t, they will be free to claim fees based on the value of the estate that might feel unfair.
Executor fees should also be considered when you make your will. I’ve written about executor fees, and how you can predetermine those fees within your will, in a previous column.
Before submitting an application for an estate grant, 21 days must pass after you have given notice of your intention to do so.
There is a form of notice, called a Notice of Proposed Application in Relation to Estate, that must be issued. All probate forms are numbered. This one is P1.
Our provincial government has created fillable forms to help unrepresented folks apply for estate grants. Use “BC Supreme Court Probate Forms” in a browser search bar to get to the web page which gives instructions about how to access and use the forms. The only software you’ll need is a free version of Adobe Reader.
Rule 25-2 of the Supreme Court Rules lists the folks who must receive a copy of the P1 as well as a copy of the will (if there is a will). You can access that rule by using “BC Supreme Court Rules” in a browser search bar. It’s a dizzying read!
For most estates where there is a will, the people who will typically need notice are:
- Anyone named in the will as an executor or alternate executor, though you don’t have to send a notice to yourself!
- If you’re not a named executor (circumstances described earlier in this column), anyone who is at the same or higher level of the priority lists of folks with a right to apply,
- Named beneficiaries,
- Anyone who would share in the estate if there had been no will (I’ve written about this in a previous column), and
- If the deceased was a member of a treaty first nation, the treaty first nation. If a Nisga’a citizen, the Nisga’a Lisims government.
Others might need notice as well if a beneficiary is a minor or is mentally incompetent, or if a person requiring notice is deceased.
Notice can be delivered by ordinary mail. It can also be delivered by e-mail, provided the recipient replies to the e-mail confirming they received the notice.
This part of the probate process is critical. If the notice isn’t properly prepared, or is not sent to those who require notice, the Court Registry folks who end up reviewing your application will require you to rectify those errors by re-issuing corrected notices or issuing new ones. Unless I’m flooded with e-mails, I’ll do my best to respond to requests for help if you are uncertain about who to give notice to.
If you have difficulty locating previous columns I’ve referred to, e-mail me and I’ll give you links.
