Losing a loved one is hard. And if you’ve been named as an executor in their will you might be feeling overwhelmed. Navigating the probate process might seem complex. Going to court probably sounds daunting. But you can do it. Full video transcript.
If you’re named as the executor in someone’s will, you may need to probate the will. Probate is a legal procedure that confirms the will is legally valid. Here, we walk you step-by-step through applying for probate.
What you should know
What applying for probate involves
For most applications: basically, paperwork. Various documents — including the original will — are filed with a probate registry. The probate registry is the official keeper of probate documents and records filed for the Supreme Court of BC.
If everything is in order, the court issues a grant of probate. This document confirms that the executor has the authority to act on the will. The executor can show the grant to anyone who holds assets of the estate (such as banks).
Where there isn't a will or the executor won't be acting
What if there is no will, or if the named executor in the will isn’t able or willing to act? You would apply for a grant of administration, instead of a grant of probate.
Not all wills need to be probated
If the estate assets are worth less than $25,000, probate is not typically required. It’s up to the institutions that hold the assets whether they’ll transfer them to you without probate. Check with them and see.
Probate isn’t required for assets that pass outside of the will
Probate is only required for estate assets. Not all things owned by the will-maker form part of the estate. Certain types of assets pass outside the will. This means you can transfer them to someone without a grant of probate (though you’ll still need a copy of the death certificate). Common examples include:
Assets held in joint tenancy. These are assets owned jointly with someone else. Examples include a joint bank account or a home owned in joint tenancy. Joint tenancy is a type of ownership. Usually, when a joint tenant passes away, their share automatically becomes the property of the other joint owner(s).
Assets with a designated beneficiary. There are certain assets where you can designate (that is, name) someone as a beneficiary. This person will receive the asset proceeds after you pass away. Examples include a life insurance policy and a registered retirement plan such as an RRSP.
Many couples hold all their assets through joint ownership or with beneficiary designations, in part to avoid the probate process.
If the deceased owned land
If the deceased owned real property other than in joint tenancy, probate is required. The land title office will ask you to provide a grant of probate to transfer the real property. This is so even if the will-maker’s interest in land is less than the $25,000 threshold.
When you sign the documents
You’ll need to sign some of the probate 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 probate application, you must pay a court filing fee of $200.
You may also have to pay probate fees to the court. These must be paid before the court will give you the grant of probate. Probate fees are based on the gross value of the estate assets. (That is, the value of the estate assets before debts.)
Fees are payable based on a formula. See below under step 4 of applying for probate for details on how probate fees are calculated.
No court fees are payable on small estates
If the estate has a value of less than $25,000, there are no court fees payable. That is, there is no court filing fee and no probate fees.
How long the process takes
The time frame for the probate registry to review and approve probate applications can vary considerably. Generally the process takes two to three months.
If your probate application is rejected
If your application is rejected, the probate registry will tell you the reason.
You can correct the problem and re-apply.
Apply for probate
Step 1. Notify others that you intend to apply for probate
"My wife named me as executor in her will. She left her estate to me and our children. The only other gift was a ring to her sister. I was confused about whether I had to send her brother notice of the probate application. My lawyer explained that if my wife had died without a will, only the kids and I would have been entitled to the estate under the law. So I don’t have to send her brother notice of the application."
– John, Port Moody, BC
You must notify certain people that you intend to apply for probate. To do so, complete the court form P1, notice of proposed application (available here). You must deliver this notice at least 21 days before submitting the probate application to court. This gives people the chance to dispute your application.
Together with a copy of the will, mail or deliver the completed form to:
each person named in the will as executor or alternate executor
each beneficiary named in the will
the deceased’s spouse and children (because they’re entitled to challenge the will)
each person who would be entitled to a share in the estate if there had been no will
anyone who’s served a citation to you in relation to the deceased (such as a citation requiring you to apply for probate)
if the deceased was a Nisga'a citizen, the Nisga'a Lisims government
if the deceased was a member of a treaty first nation, the treaty first nation
the Public Guardian and Trustee, if any of the people you need to notify is a minor or mentally incapable adult
Failing to give notice to the Public Guardian and Trustee, when it’s required, is a common reason probate applications are rejected.
Step 2. Prepare the probate application
You need to prepare several documents. A typical probate application will include these documents:
Submission for estate grant, in court form P2. This form gives details about your application for probate.
Affidavits of delivery, in court form P9. Together, these confirm that notice of the application was delivered to everyone required.
The originally signed version of the will, or if the original does not exist, a copy of the will. You’ll also need to file evidence that supports that it’s a copy of the valid will. The court may or may not accept the copy.
Additional documents may be required. Examples include forms to deal with issues relating to the will, dispensing with notice, or an executor renouncing their executorship.
Tips for filling out probate forms
If there’s nothing to list under one of the headings on a form, write nil or none. Blank spaces may suggest that information is missing. This is one of the main reasons forms are rejected.
We have more tips for filling out probate forms, where we walk you through the standard probate forms and answer common questions about completing them.
Step 3. File the probate application
File the probate application in a probate registry of the Supreme Court of BC. To find the closest probate registry, you can contact Enquiry BC by calling 1-800-663-7867 (toll-free).
When you file the application, you’ll have to pay a court filing fee. The fee is currently $200. If the estate has a value of less than $25,000, you don’t have to pay this fee.
Step 4. Pay any probate fees
Once the application is reviewed, the probate registry will assess the probate fees you need to pay. These must be paid before the court will issue you a grant of probate.
The probate fees are based on the gross value of estate assets that were located in British Columbia when the deceased died. If the deceased was ordinarily resident in British Columbia immediately before they died, you’ll also need to pay probate fees on intangible (non-physical) assets located outside of the province, such as bank accounts or investments.
If the estate assets have a value over $25,000, fees are payable on the following basis.
|Estate value||Probate fees|
|$0 to $25,000||0|
|$25,000 to $50,000||$6 for every $1,000 (or part of $1,000)|
|$50,000 or more||$14 for every $1,000 (or part of $1,000)|
For example, if the gross value of the estate assets is $125,000, the probate fees will be $1,200:
$6 x 25 (for every $1,000 between $25,000 to $50,000) = $150
$14 x 75 (for every $1,000 between $50,000 to $125,000) = $1,050
These probate fees are in addition to the court filing fee of $200.
Step 5. Proceed with administering the estate
Once probate is granted, you can proceed with the remaining steps in administering the estate.
Who can help
For assistance in applying for probate, some of the options for free or low-cost legal help may be helpful.