Dealing with probate without the assistance of a lawyer

DIY probate

Can an estate grant be obtained without a lawyer? It’s a little tricky, but absolutely.

This is the third column in a series providing practical advice about the process.

Just because it’s possible to obtain an estate grant without the assistance of a lawyer doesn’t mean it’s something you should take on. It can be an incredibly frustrating process.I know from experience when I first started dealing with estates.

The few thousand dollars you pay a lawyer to look after it will be paid out of the estate, shared by all the beneficiaries.The ideal reason to give this a shot is where you are the sole beneficiary because you have an interest in keeping those few thousand dollars of legal fees for yourself rather than paying them to a lawyer.

I discussed identifying the last will in the first column in this of the series. In the second column I discussed who should make the application and explained the notice that must be provided at least 21 days before you submit your application to the court registry. This week, I will describe the documents that must be included in that application.

I’ll start with the easy ones. The original, and two photocopies, of the will are needed. Don’t remove the staple from the will. Don’t worry if you’ve already removed it. The sky won’t fall. It will just mean a bit of extra effort down the line.

Two copies of the printout results of your search of the Wills Registry I told you about in the first Colm are also needed.

An easy form is an affidavit you need to swear/affirm saying you issued the required notices described in the second column. That affidavit is numbered P9 and called “Affidavit of Delivery”. You prepare that form the same way you prepare the P1 form, by using the free online forms. The forms are set up so questions are posed and you type in the answers. The completed form is automatically generated according to the answers provided. It’s really quite cool.

The next logical step is to prepare the “Affidavit of Assets and Liabilities for Domiciled Estate Grant”, which is form P10. I gave some instructions about how to list estate assets in a column published Jan. 5.

The most complicated form is number P2, “Submission for Estate Grant”. But like all the others, you simply answer the questions and the completed document is automatically generated.

You need to be armed with a bunch of information to complete these forms. My wife has created a fill-in-the-blanks PDF document to contain the information needed. We find that document helpful to ensure we have everything before we start filling out the forms. If you would like a copy of that document, e-mail me and I’ll send it to you.

Next up is the “Affidavit of Applicant for Grant of Probate or Grant of Administration with Will Annexed.” (form P3) Don’t let the title scare you. It’s just another form. In this document, you swear/affirm that the information in all the other documents is correct.

Have you noticed that the form numbers seem random? It’s a mystery to me too.

There’s only two more.

Form P41 “Requisition - Estates” is like a cover letter to the court registry.

Finally, form P19, “In Probate,” is the estate grant pot of gold at the end of the rainbow. Once all the “Is” are dotted and “Ts” are crossed, that document gets signed by a representative of the court.

Because you make a photocopy of each of the forms after they are signed or sworn/affirmed, I recommend signing everything with blue ink so you can easily see which are the originals.

You take everything to the court registry along with a $200 filing fee, paid by cash, debit or cheque. The clerk will take all the originals stamp and return the copies to you so you have copies of everything you filed.

That’s it. You’re done. Then you sit back and wait for a call from the registry giving you the amount of probate fees you must pay in order to pick up the estate grant.

Well, not so fast. Mentally prepare yourself for failure. The registrar reviewing your package will do so with an incredibly detailed, multi-page checklist. The odds of your materials surviving that checklist your first attempt of applying for an estate grant are slim to none.

The registrar reviewing your package will provide you with their checklist noting the deficiencies. The checklist will also indicate what is required to rectify them.

Expect to wait a few months for your package to be reviewed. The court registry staff process a huge volume of estate grant applications.

The beautiful thing is you don’t have to wait that same time for your rectification materials to be reviewed because your file will remain at the front of the queue.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Tips for dealing with probate if you are the executor of a will

Dealing with probate

This is the second part of a series about applying for an estate grant, which most people refer to as “probate”.

My goal is to help those struggling to do this on their own without hiring a lawyer. A fringe benefit for others readers is understanding the probate side of things can help with estate planning.

This week I will discuss determining who makes the application and giving notice.

Typically, it’s the named executor(s) in the will who apply for the estate grant. But that’s not always the case. The named executor might have died or is no longer willing or capable of taking on the role. Maybe it’s a home-made will with no executor appointed at all.

Section 131 of the Wills, Estates and Succession Act gives a priority list of people who can apply for an estate grant in those circumstances. Anyone can take on the role with the agreement of the beneficiaries.

Another scenario might be that your dad’s very old will names his sister, now aged 85, to be his executor because at the time he made his will you and your siblings were toddlers. With your aunt’s agreement, you and your siblings could decide one of you will take on the role. Yet another example could be your dad named all three of his children to be his executors. To avoid added administrative hassle that comes with multiple executors, you and your siblings might agree that only one of you will take on the executor role.

Keep this flexibility in mind if you find yourself considering the expense of creating a new will for the sole purpose of changing your executor.

(Note I’ve written a couple columns with do-it-yourself instructions about how to change your will if you want to change executors on the cheap.)

If there’s no will, section 130 of the act gives a priority list of people who the court can issue the estate grant to. There’s flexibility, anyone can apply for the estate grant with the agreement of those with an interest in the estate.

One important factor when deciding who will take on the administrator role in these circumstances is executor or administrator fees. Nail down what the chosen applicant will be paid, if anything, as part of the decision-making process. If you don’t, they will be free to claim fees based on the value of the estate that might feel unfair.

Executor fees should also be considered when you make your will. I wrote about executor fees and how you can predetermine those fees within your will, in a previous column.

Before submitting an application for an estate grant, 21 days must pass after you give notice of your intention to do so. There is a form of notice, called a Notice of Proposed Application in Relation to Estate, that must be issued. All probate forms are numbered. This one is P1.

The provincial government created fillable forms to help unrepresented folks apply for estate grants. Use “B.C. Supreme Court probate forms” in a web browser to get to the web page that gives instructions about how to access and use the forms. The only software you’ll need is a free version of Adobe Reader.

Rule 25-2 of the Supreme Court rules lists the folks who must receive a copy of the P1, as well as a copy of the will (if there is a will). You can access that rule by seaching “B.C. Supreme Court rules”. It’s a dizzying read!.

For most estates where there is a will, the people who will typically need notice are:

1. Anyone named in the will as an executor or alternate executor. (You obviously don’t have to send a notice to yourself)

2. If you’re not a named executor (circumstances described above in this column), anyone who is at the same or higher level of the priority lists of folks with a right to apply.

3. Named beneficiaries.

4. Anyone who would share in the estate if there had been no will .(I’ve also written about that in a previous column)

5. If the deceased was a member of a treaty First Nation, then the First Nation. (If a Nisga’a citizen, the Nisga’a Lisims government.)

Others might need notice as well if a beneficiary is a minor or is mentally incompetent, or if a person who requires notice is deceased.

Notice can be delivered by ordinary mail or by e-mail, provided the recipient replies to the e-mail confirming they received the notice. This part of the probate process is critical. If the notice isn’t properly prepared or is not sent to those who require notice, the court registry, which reviews your application, will require you to rectify the errors by re-issuing corrected notices or issuing new ones.

Unless I’m flooded with e-mails, I’ll do my best to respond to requests for help if you are uncertain about who to give notice to.

If you have difficulty locating previous columns I’ve referred to, e-mail me and I’ll give you links.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Important for executor to search for most recent version of a will

Looking for the will

Dealing with a modest estate after a death

Smaller estate grants

I often get calls from folks asking for help with modest or insolvent estates.

I can usually help them along their way with a quick chat. Today’s column will cover some common points. One is that an estate grant, which is usually required to transfer assets that are registered solely in the deceased’s name, is often not required with an estate valued less than $25,000.

What I’m referring to as an “estate grant” is a court order granting a representative (executor or administrator) authority to step into the shoes of the deceased when it comes to dealing with the deceased’s assets. It’s like a power of attorney but is obtained after death.

The legal process of achieving an estate grant is commonly referred to as “probate”. If your dad passes away with $75,000 in a bank account that is solely in his name, you will need to go through the probate process to satisfy the bank that you have the authority to access those funds.

But if your dad’s account balance is less than $25,000, the bank will likely release those funds if you satisfy them that you are the proper person to deal with the estate. This will include swearing a statutory declaration containing an agreement to take financial responsibility if someone claims against the bank for improperly releasing the funds to you.

Each bank has their own policies, but this has become an industry standard. There is also some flexibility, so it’s possible that a bank will release accounts exceeding $25,000.

ICBC has similar policies for the transfer of a vehicle. Use “ICBC’s checklist for estate transfers” as a browser search term for an informative chart explaining what documentation ICBC needs to transfer title to a vehicle for different estate circumstances.

The checklist refers to estates of less than $25,000, though I know of situations where vehicles have been transferred without the need for probate in estates exceeding $25,000.

Whether or not an estate grant (probate) is required doesn’t change the requirement to properly administer the estate.

Consider an estate where the deceased has thousands of dollars of debt. As the named beneficiary, you expose yourself to personal liability if you take (or give to other beneficiaries) any of the estate assets before paying the estate debts.

I’ve written previously about the option of leaving an estate alone if debts exceed assets. E-mail me for a link if you have difficulty finding it.

As long as you don’t take estate assets or otherwise muck with (intermeddle) an estate, there is no obligation on a named executor, spouse or child to do anything. Creditors can be left hanging, furnishings can be left in an apartment and tax returns can be left unfiled.

Are you unsure if a creditor will go to the expense of taking legal action to pursue payment of a debt? Section 146 of the Wills, Estates and Succession Act (WESA) allows an estate representative to give notice to a creditor requiring them to commence a legal proceeding to collect their debt within 180 days or their claim will be extinguished.

Note that estate assets can be used for the deceased’s funeral even if there are unsecured creditors circling. Section 170 of WESA provides a priority list of where funds can go with an insolvent estate. Reasonable funeral expenses are at the top of that list.

I’ll end with a reminder of the puzzling reality that a deceased’s estate does not include assets that pass directly to beneficiaries, such as jointly held assets with the right of survivorship and registered accounts (TFSAs, RRSPs, RRIFs, etc.) where a beneficiary has been named. I’ve written about this a number of times. E-mail me for help finding those columns. Also e-mail me with any other questions you might have about administering a modest estate.

Unless I’m delayed with an intervening column answering those questions, my next column will be about helping folks navigate an application for an estate grant without a lawyer.

Please be cautious about acting on the legal information I provide in my columns. There are a dizzying number of circumstances that can arise in an estate and it is always best to get legal advice from a lawyer who is fully informed about your particular circumstances.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.