When to apply for a grant of administration
When someone dies, their property must be dealt with. Ideally, the person named in the deceased’s will as executor can do this. But sometimes this isn’t possible. Consider the following scenarios:
- The deceased had a will, and they named an executor in it. But it turns out this person doesn’t want (or can’t do) the job. Here, someone may need to apply to court for a grant of administration with will annexed.
- The deceased didn’t have a will. (So they never chose an executor.) Someone may need to apply to court for a grant of administration without will annexed.
- The deceased had a will, but the court says it’s not valid. (Because, for example, the deceased seems to have been pressured into signing it.) Someone may need to apply to court for a grant of administration without will annexed.
What applying for administration involves
Basically, paperwork. Various documents are filed with a probate registry. Registries are the official record keepers for the Supreme Court of BC.
If everything’s in order, the court issues a grant of administration. The administrator named in this document has the legal authority to settle the deceased’s estate. This can include paying debts, selling assets, and distributing property. The administrator can show the grant to anyone who holds assets of the estate (such as banks).
The law says who can apply
The people who can apply for a grant of administration are listed under the law in order of priority. You can only apply if no one above you wants the job. The order of priority depends on what type of administration application is being made.
If there’s no valid will
“My best friend Mara died without a family of her own, or any siblings. She left me 60% of her estate. The remaining 40% is to be split between 10 of her cousins, and adult nieces and nephews. I want to apply to administer the estate. The other 10 beneficiaries don’t want me as administrator — they want to keep it in the family. But even though I’m just one beneficiary, I hold the “majority interest in the estate” (more than 50%). I have more say than the others. I have first priority as administrator.”
– Sophia, Vancouver
The law sets out who can apply for a grant of administration without will annexed. From the top:
- The spouse of the deceased or someone nominated by them.
- An adult child of the deceased, with the consent of the majority of the deceased’s children.
- A person nominated by a child of the deceased. That person must have the consent of the majority of the deceased’s children.
- An adult child of the deceased without the consent of the majority of the deceased’s children.
- If there are no adult children, any other heir (that is, someone who’s entitled to a share of the estate) may apply. Priority goes to an heir who’s the consensus pick of the heirs that have the "majority interest in the estate." Next, priority goes to someone nominated by those heirs. Otherwise, any heir can apply.
- Anyone else. This may include a friend of the deceased, or a professional such as a lawyer or accountant. The Public Guardian and Trustee might also apply to administer the estate, if no one else is willing to do it.
If there’s a valid will, but the executor won’t be acting
The law sets out who can apply for a grant of administration with will annexed. Again, by order of priority:
- A beneficiary who’s the consensus pick of the other beneficiaries who have a majority interest in the estate.
- Someone nominated by a beneficiary. They must have the consent of the beneficiaries who have a majority interest in the estate.
- A beneficiary who doesn’t have the consent of the beneficiaries with a majority interest in the estate.
- Lastly, any other person, including the Public Guardian and Trustee, with consent.
If you’re thinking of applying for administration, check that everyone who has equal or higher priority than you is okay with you throwing your hat in. It’s a good idea to get their written agreement to your application. If the deceased died after March 31, 2014 (when new law was introduced), these consents aren’t required by law. But it’s good practice to file them with your court application.
You can deal with some assets without a grant of administration
If the estate assets are worth less than $25,000, you typically don’t have to apply for a grant of administration. It’s up to the institutions that hold the assets whether they’ll transfer them to you without one. Check with them and see.
A grant isn’t required for assets that pass outside of the will
A grant of administration is only required for estate assets. Not all things owned by the deceased form part of the estate. Certain types of assets “pass outside the will.” This means you can transfer them to someone without a grant (though you’ll still need a copy of the death certificate). Typical examples include:
- Assets held in joint tenancy. Examples include a joint bank account or a house owned in joint tenancy. This is a way that property can be owned. Usually, when a joint tenant passes away, the other owner(s) automatically get their share.
- Assets with a designated beneficiary. The deceased may have named someone as a “designated beneficiary” of a particular asset. (That means the deceased chose this person to inherit the asset — usually money.) Examples include a life insurance policy or a retirement benefit plan.
Many couples hold all their assets through joint ownership or with beneficiary designations to avoid going to court for probate.
If the deceased owned land
As the administrator, you’ll need to transfer the land to someone else (either by selling or to a beneficiary or heir). If the deceased owned land other than in joint tenancy, you’ll need to apply for a grant of administration. This is true even if the deceased’s interest in the land is less than the $25,000 threshold.
If you’re wondering whether the deceased held land in joint tenancy, you can look at the state of title certificate. Under the law, the transfer document and title must state that the land is held in joint tenancy, otherwise it becomes a tenancy-in-common.
When you sign the documents
You’ll need to sign some of the application forms in front of a lawyer, notary public, or a commissioner for taking affidavits. All court registries have such a commissioner, and some community groups do as well.
When you sign a document in front of them, it means you’re swearing that the information in the document is true.
Fees to be paid to the court
To file the administration application, you must pay a court filing fee of $200.
You may also have to pay the court probate fees, up front. Probate fees are based on the gross value of the estate assets. (That is, the value of the estate assets before debts.)
Fees are calculated based on a formula. See below under “Apply for a grant of administration” for details.
If the estate has a value of less than $25,000, there are no court or probate fees.
You may have to pay a bond to the court
If you’re applying for a grant of administration, you may have to deposit money with the court. This is called a bond. The bond ensures you’re doing your work honestly and competently.
The court may tell you to pay a bond if there’s a beneficiary or heir who is:
- A child under 19.
- An adult who is mentally incapable, and doesn’t have a nominee. This is someone who’s responsible for the adult’s financial affairs, such as an attorney under a power of attorney.
If required, you’ll need to pay the bond before the court will issue you a grant of administration. Bonding companies may ask you to pay a bonding premium and other fees. These can be charged to the estate when you do your final accounting.
How long the process takes
The time frame for the probate registry to review and approve administration applications can vary considerably. Generally the process takes two to three months, but it will depend on the volume of applications and staffing levels at the probate registry.
If your administration application is rejected
If your application is rejected, the probate registry will tell you the reason. You can then correct the problem and re-apply.