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Probate and estates links: Main page About the law Articles FAQs Fees Lawyers  Dellis Rand 28+ years experience in probate and estate management And... Other areas Reference links Search the site |
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The law of probate and estates governs what happens when someone passes away. If there's a will, the person named in it as the executor (or executrix, if she's a woman) must apply for a court order called "a grant of letters probate." If there is no will, an interested party (usually a close relative) may apply for a similar order, called a grant of "letters of administration." If successful, that person is called the administrator (or administratrix). See about:
Executors and administrators An executor or administrator is responsible for the assets of the deceased (the person who died). That is, he manages and distributes the estate. An executor follows instructions in the will; an administrator follows the Estate Administration Act. These procedures are very similar. You must decide whether you want to be an executor or administrator. It may involve much time and responsibility. You could also be liable to either the beneficiaries or creditors of the estate, if you're negligent in your duties. Seek legal advice on your responsibilities. Anyone with an interest in the estate may apply to be an administrator. The court usually prefers the applicant with the greatest interest in the estate. Top of Page
What to do when someone dies As an executor or administrator, you need to take care of many details. They include: Funeral arrangements: Did the deceased leave any instructions? Housekeeping matters: Are the house and car insured? Are they secured? Search for valuables, pay rent and have mail redirected to you or your lawyer. Financial accounts: Cancel all credit cards and bank cards. Inform financial institutions. Check any mortgages, and arrange for payment or deferral. Contact insurers. Expenses: Keep track, and save copies of receipts. Searching for the will: A lawyer can search for a wills notice, filed with the government. Searching the safety deposit box: Bring the key, the death certificate and some identification. Search for any wills, and take an inventory of the assets. Inventory of assets and liabilities: Search the deceased's home. Look for bank statements, income tax returns, bills, policies and other clues. Some assets may pass outside the estate. Pension and retirement benefits: If applicable, notify the Old Age Security or Canada Pension Plan departments and apply for death benefits. For more details, see the article "What to do when someone dies." Top of Page
Meeting with a lawyer After gathering as much information as possible (see "What do I bring to the lawyer's office?" for a detailed list), your next step is to meet with a lawyer to discuss legal procedures. If there is a will, your lawyer will review it and advise you of any problems. You will likely discuss the deceased's mental state at the time the will was written, and whether the will makes sense in light of family relationships. Will anyone try to challenge the will? If so, your lawyer will explain your options and how to protect yourself from liability. She will also search for a wills notice indicating a more recent will. If there is no valid will, your lawyer will explain who will get what, under the Estate Administration Act. When reviewing your documents, your lawyer may find some things need to be done immediately. These will likely affect the estate's assets or liabilities. You may also discuss your tax planning options, if any. Top of Page
Applying for probate or administration Before applying for probate or administration, you must notify everyone who is or may be a beneficiary:
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What happens after getting the order After getting the order, you must deal with the estate according to the will, or the Estate Administration Act. This generally means Selling all assets Your lawyer can help you transfer any assets into your name first, so that you can then deal with them. Depending on the will instructions, if any, you may have some flexibility as to which assets to sell and which to keep. Some assets may have to be held in trust until certain events happen. For example, if money were held in trust for a child until he turns 19, you would be responsible for the estate until then. Top of Section Top of Page Paying all liabilities You have a duty to determine the liabilities of the estate and their validity. You must then pay all creditors before distributing the estate. In B.C., an executor or administrator may publish a notice requesting the deceased's creditors to send in their claims by a specified date. A creditor who does not give notice by this deadline generally cannot enforce any claim against the executor or administrator. A key liability, however, is income tax. You're responsible for filing returns. Because of the many technical rules and procedures, you should seek professional advice on preparing the final tax returns. Top of Section Top of Page Dividing the rest Under the Wills Variation Act, a spouse or child may, within six months of the grant of probate, sue the estate if the will does not provide adequate maintenance or support. The court has a wide discretion to make a "just and equitable" order. If you distribute the estate within the six months, you could be liable. After all the assets have been called in, all liabilities and income taxes have been paid, and there's no risk of a Wills Variation action, you may distribute the estate to the beneficiaries. Your lawyer can tell you when it's safe to do so. See "What happens if you die without a will?" for the current rules on how the estate would be divided if there is no will. Top of Section Top of Page |
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Legal disclaimer: The information provided on Lawyers-BC.Com is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered. Your access to and use of this Web site is subject to additional terms and conditions. This page last updated: August 18, 1999 © copyright 1999 Lawyers-BC.Com Services Ltd. |
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