Estates
Who’s In Charge?
If you have been asked to be the legal representative for a deceased person, you first need to find out if you have the legal authority to act. If the deceased made a Will, it will appoint someone as the Executor. If you have been named as the Executor, you have some initial rights and responsibilities, such as making the funeral arrangements.
If there is no Will, the government has created rules to decide who makes the funeral arrangements. First is the spouse. If there is no spouse, then an adult child, then an adult grandchild, then a legal guardian if the deceased was a minor, then a parent if there are no others with priority. The full list is in the Cremation, Internment and Funeral Services Act, section 5. If two or more people are eligible but unable to agree, the oldest is allowed to make decisions. The Act allows a person to apply to Court if he disagrees with the decision.
A person appointed in a Will is called an Executor. If there is no Will (or if the Executor named in the Will is deceased or not able or eligible to act), the legal representative is called the Administrator.
The Wills & Estate Administration Act (WESA) lists who can apply to be Administrator, starting with the spouse, then a child (or other person) with consent of the majority of the children, then other next of kin. If there are no kin, the court looks to the Public Guardian and Trustee.
The term Trustee is used to refer to either the Executor or Administrator.
The Funeral Home assists with funeral arrangements, the Death Certificate, and Canada Pension Plan application forms.
First Duties of the Trustee
Aside from funeral arrangements, the Trustee must preserve and protect estate assets. This includes controlling access to the deceased’s home and personal effects. If items go missing or are given away, the Trustee may be personally liable.
Emotions often run high following a death. Even close families may experience conflict. The Trustee should generally advise that estate matters will be dealt with after the funeral so immediate priorities can be addressed.
If all parties agree and are acting rationally, personal assets may be divided early. If there is any disagreement or emotional distress, distribution should be postponed.
When Court Is Unnecessary
Court applications are often unnecessary when assets pass automatically to a survivor:
- Assets owned as joint tenants (e.g. land or bank accounts), but not tenants-in-common.
- Assets with a named beneficiary (e.g. insurance, RRSPs, pensions).
In these cases, a death certificate and required forms are usually sufficient. The Will does not affect these transfers.
BC has rules for small estates. For example, ICBC may allow transfer of a vehicle if the estate value is under $25,000, excluding jointly held or beneficiary-designated assets.
Banks may allow transfers without court depending on asset value and relationship. Some assets, such as land interests, always require a court application.
How the Estate Is Divided If There Is No Will
If there is no Will, the estate is divided between the spouse and children.
The spouse receives:
- $300,000 if all children are also children of the spouse
- $150,000 if the deceased had children from another relationship
The remainder is split 50% to the spouse and 50% to the children. The spouse also receives household furnishings and may purchase the family home.
If there is a spouse but no children, the spouse inherits the estate. If there are children but no spouse, the children inherit. If neither exists, the estate goes to next of kin under WESA.
Spouse & Children
“Spouse” includes married spouses and those in a marriage-like relationship of at least two years. A separated spouse at the date of death does not qualify.
Gifts to a spouse and appointment as Executor are revoked upon separation, even if reconciliation occurs later.
“Children” includes biological and adopted children, but not step-children unless specifically named. It also includes children conceived and born within two years after death.
Searching for Wills & Records
The Trustee must search for any Will and evidence of testamentary intentions. This includes a Wills Registry search in Victoria and reviewing documents, emails, and records.
Applications to Court
If required, the court appoints the legal representative:
- Grant of Probate – when there is a Will
- Letters of Administration – when there is no Will
Before the Order is issued, authority is limited. Trustees may arrange funerals, pay bills through the bank, and inventory safety deposit boxes.
After the Order is issued, the Trustee has full authority to manage and distribute assets.
Time
A straightforward court application typically takes 4–6 months. Wills Registry and bank searches often take 4–5 weeks.
Cost
Costs include legal fees and disbursements. Lawyers typically charge hourly rates. Average estates often cost around $5,500 in legal fees, plus expenses and probate fees.
BC Probate Fees are:
- 0.6% on amounts between $25,000 and $50,000
- 1.4% on amounts over $50,000
Taxes & Debts
The Trustee must pay debts and set aside funds for taxes. At least two tax returns are required: one for the deceased and one for the estate.
Trustees are advised to retain funds until tax clearance is obtained or CRA audit periods expire.
Paying Out the Estate Assets
Estate challenges may be brought up to 180 days after the Court Order. Distribution should wait until this period expires or releases are obtained.
A Statement of Account is prepared showing assets, expenses, and distribution. Trustees may charge up to 5% of the estate, with 3% being typical.
Once releases are signed, assets are distributed. If disputes arise, funds should not be disbursed until resolved.
Conclusion
This handout provides general information only. For specific estate matters, professional advice should be obtained.
Prepared by:
Sean R. Hogan
Buckley Hogan Law Office
#200 – 8120 – 128th Street
Surrey, BC V3W 1R1
Telephone: 604-635-3000
Fax: 604-635-3311
Email: lawyers@buckleyhogan.com
Materials prepared January 5, 2025