Applying for Letters of Administration in BC When There's No Will

When a person dies without a will, nobody has been named to manage the estate. Before a bank, the Land Title Office or an investment firm will deal with the estate's assets, someone usually has to be appointed by the Supreme Court of British Columbia.

That appointment is often called letters of administration. In BC, the court document is a grant of administration without will annexed, and the person appointed is the administrator. This guide explains who can apply and how the process works.

What a grant of administration does

A grant of administration confirms the administrator's authority to collect the deceased's assets, pay debts and distribute what is left to the people entitled under the intestacy rules. Those rules, in Part 3 of the Wills, Estates and Succession Act (WESA), decide who inherits. We explain them in dying without a will in BC: who inherits.

The administrator's role is similar to an executor's, with one difference: an executor is chosen by the will-maker, while an administrator gets authority only from the court. Section 135 of WESA treats the administrator as the personal representative from the date of death, but they are not liable for losses to the estate before the grant unless they would have been liable anyway.

Who has priority to apply

Section 130 of WESA sets out who the court may appoint, in order of priority:

• the deceased's spouse, or a person the spouse nominates;
• a child of the deceased who has the consent of a majority of the deceased's children;
• a person nominated by a child, if that person has the consent of a majority of the children;
• a child without majority consent;
• another intestate successor who has the consent of the successors representing a majority in interest of the estate, or a person they nominate with that consent;
• another intestate successor without that consent;
• if the estate would otherwise pass to the government, a person the government nominates; and
• anyone else the court considers appropriate, including the Public Guardian and Trustee with its consent.

Under section 132, the court can also appoint any suitable person if special circumstances justify it.

Who counts as a spouse

Under section 2 of WESA, a spouse includes a married spouse and someone who lived with the deceased in a marriage-like relationship for at least two years. Spouses can stop being spouses before the death. For unmarried partners, that happens when either of them ends the relationship. For married couples, it happens when an event gives rise to an interest in family property under the Family Law Act, such as separation. Whether a person was still a spouse at the date of death is a common source of disputes over who should apply.

Consents, nominations and disagreements

Majority consent is often where things stall. A child who wants to be administrator ranks ahead of the other children only with the consent of a majority of the deceased's children. Another option is for the family to agree on one person, or nominate a trusted outsider, and document that agreement.

When family members disagree about who should apply, or about whether a person was a spouse, it is worth getting advice before anything is filed. Contested applications for a grant are decided by a judge, which adds cost and delay.

Step 1: Give notice of the proposed application

Under Rule 25-2 of the Supreme Court Civil Rules, the intended applicant must deliver a notice of proposed application (Form P1) before applying. Where there is no will, notice goes to:

• each intestate successor, and each person who would be one if the estate were larger than the spouse's preferential share (or the Attorney General if there are none);
• each creditor whose claim is more than $10,000; and
• the Nisga'a Lisims government or a treaty first nation, if the deceased was a citizen or member.

The notice tells recipients they can oppose the grant and that, on an application for administration, they can apply for an order requiring the applicant to provide security. You cannot apply until at least 21 days after the notice is delivered.

Step 2: Prepare and file the application

Rule 25-3 sets out what is filed in the Supreme Court registry. For a grant of administration without will annexed, the package includes:

• a submission for estate grant (Form P2);
• the applicant's affidavit in Form P5, and an affidavit in Form P8 from each additional applicant;
• two copies of a certificate from Vital Statistics showing the result of a search for a wills notice;
• one or more affidavits (Form P9) confirming that notice was delivered to everyone entitled to it; and
• an affidavit of assets and liabilities (usually Form P10).

Most estates also pay a probate fee based on the value of the estate. Our article on applying for probate in BC walks through the registry review and what happens once a grant issues. The steps are similar for executors and administrators.

When security (a bond) is required

Under section 128 of WESA, an applicant for a grant of administration does not have to provide security unless:

• a minor, or a mentally incapable person who has no nominee with authority to represent them in estate matters, is interested in the estate; or
• the court requires security on the application of a person interested in the estate.

If security is required, the applicant must apply to the court to set it. The court can accept any form or amount of security, and can restrict what the administrator may do without approval from the court or the Public Guardian and Trustee. Where a minor is an intestate successor, which is common when a parent dies young, plan for this step early.

After the grant

Once appointed, the administrator collects the assets, pays the debts and distributes the estate according to WESA. The notice of proposed application also warns that the administrator must give the intestate successors an accounting of how the estate was administered and distributed. Keeping good records from the start makes that much easier.

Need to administer an estate without a will? Start with the right applicant

Our probate and estate lawyers can confirm who has priority to apply, obtain the consents or nominations needed, prepare the notice and court forms, and guide the administrator through collecting and distributing the estate.

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