B.C. Ministry of Justice defines a Grant of Probate as
"an official confirmation given by the court that the person
named as executor is the proper person to settle the estate.
Financial institutions, when they hold any of the estate's
assets, and ownership registries, like the Land Title and Survey
Authority of BC or the Motor Vehicle Branch, will generally require
this confirmation before allowing the transfer of assets."
The definition above pre-supposes the reader's familiarity
with the term "executor", which for those readers
unfamiliar with the term is defined by the B.C. Ministry of Justice
as "the person named in the will to take charge of disposing
or distributing the estate according to the directions left by the
testator. One of the primary duties of the executor is to apply,
when necessary, for a Grant of Probate to allow for the transfer of
assets from the estate to the beneficiaries."
If we then were to combine the two definitions above, we might
say that Probate is essentially court-certified proof of the
executor's authority to dispose of the property of the Deceased
in accordance with the Deceased's intentions, as reflected in
the Deceased's Will. However, because such proof is not always
required in order for the Executor to administer the Estate,
obtaining Probate is not always required or appropriate in all
Note that where doubts about the validity of the Will exist, the
executor may commence a Probate action and request that the Court
prove the Will in "solemn form". Proving a Will in solemn
form has the effect of protecting the Grant of Probate from later
attacks regarding the validity of the Will. However, for the vast
majority of non-contentious wills, proof "in common form"
is the norm and is obtained through affidavit material contained in
an application delivered to the Probate Registry.
We find that many people confuse Probate with the Probate Fees
associated with an executor obtaining a Grant of Probate. Probate
Fees are established under the Probate Fee Act, SBC 1999,
c. 4 and are calculated for each estate with a value exceeding
$25,000.00 on the following calculation:
If the value of the estate exceeds $25,000.00 the amount of fee
a. $6.00 for every $1,000.00 or part of $1,000.00 by which the
value of the estate exceeds $25,000.00 but is not more than
b. $14.00 for every $1,000.00 or part of $1,000.00 by which the
value of the estate exceeds $50,000.00.
Because many estates in B.C. include real estate, the majority
of estate values exceed the $50,000.00 threshold and therefore many
people often say, as a general rule of thumb, that estate tax in
B.C. is 1.4%, although this is not strictly true. Note that estates
with a value of $25,000.00 or less are not subject to Probate
We also find that many people are unclear about the difference
between Grants of Probate and Grants of Letters of Administration.
In a previous article, we briefly discussed the
concept of intestacy and that individuals who die without a valid
will die intestate. Intestate Estates are subject to a different
set of statutory requirements and procedures than a Grant of
Probate, namely that where an individual dies without a valid Will,
certain people may apply to administer the assets of the
Deceased's Estate and, if successful, receive a Grant of
Letters of Administration confirming that such person(s) have been
authorized by the Court to administer the Estate.
We recognize that the preceding is a simplification, however we
intend to canvass Letters of Administration more fully in future
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
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