Do You Need a Lawyer for Probate in BC?

If you have been named executor, one of the first questions is whether you have to hire a lawyer. In BC, you do not. The court rules allow an executor to prepare and file the probate application personally.

Whether you should is a different question. A straightforward estate with a clear will and cooperative family can be manageable on your own. Other estates carry risks that land on the executor personally if something goes wrong.

The short answer: a lawyer is not required

Probate in BC is an application to the Supreme Court for a grant confirming the executor's authority. Under the Supreme Court Civil Rules, the notice that starts the process may be signed by the intended applicant or by their lawyer. Executors can, and some do, complete the forms and file them themselves.

Not every estate needs probate at all. Whether yours does usually depends on what the deceased owned and how it was held; our article on the probate application process in BC walks through the steps once you know a grant is needed.

What the application involves

Part 25 of the Supreme Court Civil Rules sets out the process. In outline:

• Notice first. You deliver a notice of proposed application (Form P1), with a copy of the will, to the people the rules list, including other named executors, beneficiaries, and anyone who would have inherited if there were no will.
• A waiting period. You cannot file until at least 21 days after delivering the notice.
• The filing. You then file a submission for estate grant (Form P2), your affidavit (Form P3 or P4), two copies of a wills notice search certificate from Vital Statistics, an affidavit confirming who received notice (Form P9), and an affidavit of assets and liabilities (Form P10).
• Probate fees and the grant. The registry issues the grant once the filing is complete and all fees, including probate fees, are paid.

Registries check filings closely, and errors in the forms or the asset list can mean delays while documents are corrected and refiled.

When doing it yourself can work

A self-filed application is more likely to go smoothly when most of these are true:

• the will is a properly signed and witnessed BC will with a standard attestation clause, and it is clearly the last will;
• the executor is clearly identified and willing to act, and any co-executors agree;
• the assets are in BC and easy to value, such as bank accounts and a home;
• the beneficiaries are adults who are getting along, and no one is likely to challenge the will; and
• there is no business, no foreign property and no unusual tax issue.

Signs your estate needs legal advice

These are the situations where executors most often run into trouble.

• Problems with the will. A BC will must be in writing and signed by the will-maker and two witnesses together. If the will has no attestation clause, or one that does not show the requirements were met, the rules require extra affidavit evidence, often from a witness who may be hard to find. Handwritten changes, a homemade will or a document that does not meet the formal requirements may need a court order before it can be probated.
• Someone may object. A person entitled to notice can file a notice of dispute to oppose the grant. At that point, a paperwork exercise becomes a contested proceeding.
• A possible wills variation claim. A spouse or child who believes the will does not adequately provide for them can apply to vary it, generally within 180 days after the grant is issued. Our article on contesting a will in BC explains these claims.
• Minor or vulnerable beneficiaries. If a minor's share is not held in a trust, the executor generally must pay it to the Public Guardian and Trustee, which also has a role in some claims involving minors or adults who are mentally incapable.
• Business interests, foreign assets or complex tax. Private company shares, property outside BC and the deceased's final tax returns all add steps beyond the probate forms.
• Executor difficulties. Co-executors who disagree, or an executor who does not want the job, need to be sorted out early. A named executor can renounce the appointment; if you may not want to act, get advice before doing anything in the estate.

Your personal responsibility as executor

Under the Wills, Estates and Succession Act, an executor must administer and distribute the estate and account to beneficiaries and creditors. Two rules catch people out. First, the estate generally must not be distributed within 210 days after the grant without the required consents or a court order. Second, unpaid creditors can make claims against the estate; publishing a notice to creditors and waiting the stated period protects an executor who then distributes without knowing of a claim.

Getting these wrong can leave the executor answerable to beneficiaries or creditors. Our step-by-step guide to executor duties in BC covers the full job.

Help does not have to be all or nothing

Some executors want a lawyer to handle the whole estate. Others prefer to do the administrative work and ask a lawyer to review the will, prepare or check the probate forms, or advise on a specific problem such as a disputed claim or a minor beneficiary. Discuss the scope at the start so you know what you are responsible for.

Named as executor? Find out what your estate needs before you file

Our probate and estate lawyers can review the will and assets, explain whether probate is needed, prepare or check the application, and advise on disputes, minor beneficiaries and distribution.

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