What is Probate and Why is it Needed?

­­­Why Probate a Will in British Columbia?

Losing a loved one is a challenging experience, and dealing with the legal matters of their estate can add an additional layer of complexity. In British Columbia, when someone passes away, the process of administering their estate usually involves obtaining a document known as a "Grant of Probate." This article aims to shed light on what a Grant of Probate is and why an executor might need to apply for a Grant of Probate in British Columbia.

What is a Grant of Probate?

A Grant of Probate is a court order issued by the Supreme Court of British Columbia that, once granted, is attached to the original will of a deceased individual.

Why Apply for a Grant of Probate?

A Grant of Probate can serve several important purposes. Most importantly, it confirms the will's validity and the executor's authority. It can also allow the executor to limit potential personal liability.

Validating the Will

A Grant of Probate assures both the executor and third parties that the will is the deceased's last will and is valid. In applying for a Grant of Probate, the executor must provide the Court with relevant information and assurances to allow it to determine whether the will is valid. As part of this process, the executor must provide the Court with any known information suggesting the will may be invalid. The executor must also notify other parties who may have an interest in the deceased person's estate and give those other parties an opportunity to object to the executor or raise concerns about the will's validity.

Confirming the Executor’s Authority

One of the primary reasons executors apply for a Grant of Probate is that it is needed for the executor to gain control of the assets of a deceased person. When a deceased individual owned assets such as real estate, bank accounts, investments, and vehicles in British Columbia, financial institutions and other parties with control over those assets (for example, the Land Title Survey Authority and ICBC) will often require a Grant of Probate to transfer these assets to the beneficiaries. Such entities wish to ensure they are dealing with the right person before giving control to someone who contacts them and claims to have legal authority over a deceased person’s assets and affairs.

By obtaining a Grant of Probate, the executor’s legal authority to manage and distribute the estate's assets according to the instructions laid out in the will is formally recognized by the Court. This formal recognition empowers the executor to act on behalf of the estate and can also help to protect from future liability. It assures third parties that the person claiming to be the executor truly has the authority to administer the estate. Without that assurance, a financial institution or other third parties cannot be confident that a document they are presented with is, in fact, a deceased individual’s valid last will. Without that assurance, there will frequently be concerns that the will might have been obtained through fraud or undue influence, that the will is invalid due to a lack of mental capacity on the part of the will-maker, or that a codicil or newer will may have subsequently amended the will.

Proof in Solemn Form vs Proof in Common Form

There are two main ways of proving the validity of a will: "proof in solemn form" and "proof in common form." These terms refer to the different approaches and levels of scrutiny applied by the Court during the probate process.

Proof in Solemn Form

Proof in solemn form is an adversarial process generally used in probate proceedings only when there is a question about the validity of the will. It is typically employed when there are doubts or disputes regarding the execution of the will, undue influence on the will-maker by others, or the mental capacity of the will-maker at the relevant times.

When proof in solemn form is required, the Court holds a hearing where the parties present evidence and arguments supporting their positions. This can involve witness testimonies, expert opinions, and other relevant documentation. The process can be adversarial, as both sides present their cases and may cross-examine witnesses to establish or challenge the validity of the will. The burden of proof usually initially rests on the party challenging the will's validity; they must provide some convincing evidence to show that the will is invalid or should not be admitted to probate. The burden of proof can then shift to the party wishing to have the will upheld as valid.

After hearing from the interested parties, the Court will make a formal ruling on the will's validity based on the evidence presented during the hearing. If the Court finds the will to be valid, a Grant of Probate will be issued. Once the Court gives a decision, it is typically final and binding unless there are grounds for appeal.

Proof in Common Form

Proof in common form is a more streamlined and less contentious process. It is the usual method of proving the validity of a will when there are no disputes or challenges. It is the most common way to obtain a Grant of Probate in British Columbia. Unlike proof in solemn form, no court hearing or formal legal challenge is involved. The will and a carefully prepared application package containing the required information and assurances are submitted to the Court’s probate registry for review.

The Court's role is usually limited to reviewing the submitted will and application package contents and ensuring they meet the legal requirements. The will is presumed to be valid unless there is evidence to the contrary. If the court is satisfied that all legal formalities have been met and no interested parties raise any objections, it will ask for probate fees to be paid. Once the probate fees are paid, the Court will issue a Grant of Probate, allowing the executor to proceed with administering the estate.

We will discuss probate fees in more detail in another article. For now, check out our probate fee calculator here (NOTE: $0 - $25,000 = $0):

While the process of securing a Grant of Probate through proof in common form is more straightforward than proof in solemn form, executors are still best served by seeking the assistance of an estate lawyer promptly after the will-maker’s passing. A lawyer with expertise in estates can ensure that the application for a Grant of Probate proceeds efficiently as well as helping guide the executor in general by providing professional advice about how to safely navigate the often-onerous job of being an executor, with all its concomitant fiduciary responsibility and liability exposure.

In Conclusion

Applying for a Grant of Probate in British Columbia is often a vital step in administering the estate of a deceased person. Obtaining a Grant of Probate confirms that the executor has the authority to manage the estate and distribute the assets per the deceased's wishes. Moreover, the probate process validates the will's authenticity and can limit an executor's liability.

If you find yourself in the position of an executor, it is prudent to promptly seek expert legal advice and guidance to help you navigate the estate administration process smoothly and efficiently. An experienced estate lawyer can help executors understand their powers and responsibilities, understand the legal landscape they are operating in, and guide them through the practical day-to-day matters of carrying out an executor’s duties correctly.

If you have questions about this post or would like assistance with any estate planning matters, we would be happy to assist. Please get in touch.