Executor Duties in BC: A Step-by-Step Guide

An executor steps into the shoes of the person who died. Under BC law you have the same authority over the estate that they had, and with it a duty to administer the estate, account for it and distribute it properly.

The work usually takes months. The steps below follow the order most BC estates move through, and flag the points where executors can become personally liable.

What the law expects of an executor

Section 142 of the Wills, Estates and Succession Act (WESA) gives an executor the same authority over the estate that the deceased would have had if living, subject to the will and the law. With that authority come duties: to administer and distribute the estate, to account to the beneficiaries, creditors and others you answer to, and to carry out any other duties the will or the law imposes.

Before you act, decide whether you can take this on. Under section 104 of WESA, renouncing generally ends your role as executor unless the court orders otherwise. Decide early: once you have started dealing with estate assets, renouncing may no longer be open to you.

Step 1: Find the will and secure the assets

Locate the original will, then search the wills registry kept by the Vital Statistics Agency by filing an Application for Search of Wills Notice with a copy of the death certificate and the fee. The Province asks executors to do this even if they believe they already have the original last will.

Then protect what is there. The Province's list of executor tasks includes making a list of all assets and debts and their values, gathering the names and addresses of immediate family, cancelling subscriptions and charge cards, redirecting mail, taking control of assets and collecting debts owed to the deceased. Our legal checklist for the first weeks after a parent dies covers the early practical steps in more detail.

Step 2: Decide whether probate is needed and give notice

Banks and other institutions may require a grant of probate from the Supreme Court before they release or transfer assets, although some will accept a will without one under their own policies. Our article on whether an estate needs probate in BC explains when.

If you apply, Rule 25-2 of the Supreme Court Civil Rules requires you to deliver a notice of proposed application, usually with a copy of the will, at least 21 days before you submit the application. It goes to, among others:

• anyone else named in the will as executor or alternate executor
• each beneficiary under the will
• each person who would have inherited if there were no will

Special rules apply when a person entitled to notice is a minor (under 19 in BC) or may be mentally incapable, and these often require notice to the Public Guardian and Trustee as well.

Step 3: Deal with creditors and debts

The estate's valid debts generally need to be paid before beneficiaries receive their shares. The Province warns that an executor may be held personally liable for debts that remain unpaid after the estate is distributed.

To protect yourself against claims you do not know about, you can publish a notice to creditors in the British Columbia Gazette. Once the claim period in the notice has passed, you can generally distribute without liability for claims that were not brought forward, though you still need to deal with any claims you know about.

Step 4: File tax returns and get a clearance certificate

You are responsible for the deceased's final T1 income tax return. It is generally due by April 30 of the year after death, or six months after the date of death if the person died in November or December. A later date applies if the deceased or their spouse or common-law partner carried on a business. The estate may also need its own T3 trust returns while it is being administered.

Before the final distribution, ask the Canada Revenue Agency for a clearance certificate using Form TX19, once all returns have been filed and assessed and the tax is paid or secured. Under section 159 of the Income Tax Act, an executor who distributes property without one is personally liable for unpaid tax, up to the value of what was distributed.

Step 5: Wait out the 210 days, then account and distribute

Under section 155 of WESA, you generally must not distribute the estate within 210 days after the grant is issued, and if a court proceeding that could change the distribution has been started, a court order is generally needed first. Our article on the 210-day rule explains the timing and the exceptions.

Throughout, keep the estate's money in its own account and keep a record of every receipt and payment. Before the final distribution, prepare accounts showing the assets, receipts, payments and distribution of the estate, and have them approved by the beneficiaries or by the court.

Consider holding back a reserve for final taxes and costs until the clearance certificate arrives, and asking each beneficiary to sign a release when they receive their share.

Where executors run into trouble

• Distributing too early. Paying beneficiaries before debts and taxes are dealt with can leave you personally responsible for the shortfall, and distributing within the 210 days is generally not permitted.
• Skipping notice. A missed beneficiary or family member can delay the grant or lead to a dispute later.
• Poor records. Beneficiaries are entitled to an accounting, and gaps are hard to explain months later.
• Acting alone on a disputed estate. If a claim is threatened, get advice before you sell assets or make any payments to beneficiaries.

Named as executor? Get help with the steps that carry risk

Our probate and estate lawyers can prepare the probate application and notices, advise on creditors, tax clearance and timing, and handle some or all of the administration with you.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.