Introduction
Probating a will is the legal process that verifies a will is real.
Probate can be proven in common form or solemn form. For most situations, proof in common form is all that is needed. It should be noted that proof in common form does not conclusively determine the will to be the valid last will of a person. Where the validity of a will has been called into question, or if there is any doubt as to the validity of a will, or there is any apprehension there may be opposition to the will, the executor should take steps to prove the will in solemn form.
Below are the typical steps for probating a will in common form in British Columbia, assuming the following are true, as is frequently the case (Rule 25-3(6)):
- The applicant is named in the will as an executor or alternate executor;
- A diligent search has been made and no testamentary document dated later than the date of the will has been found;
- The will is believed to be the last will of the deceased that deals with property in British Columbia;
- There are no issues with the form of the will, and the originally signed version of the will is available to file with the submission for estate grant;
- A certificate has been obtained from the chief executive officer under the Vital Statistics Act indicating the results of a search for a wills notice filed by or on behalf of the deceased, and the certificate indicates that no wills notice has been filed by or on behalf of the deceased that is dated later than the date of the will, or at all;
- The applicant is not requesting that the will be recognized as a military will;
- No issues exist respecting execution of the will;
- There are no interlineations, erasures or obliterations in, or other alterations to, the will;
- There are no issues arising from the appearance of the will;
- Any documents referred to in the will are attached to the will; and
- There has been no grant of probate or administration, or equivalent, issued in relation to the deceased, in British Columbia or in any other jurisdiction.
While every estate is different, most probate applications in British Columbia follow similar general steps. Different forms or minor variations to the steps below may be needed if any of the above are not true.
Step 1: Deliver a Notice of Proposed Application (Form P1)
The first step in the probate process is delivering a Form P1 – Notice of Proposed Application in Relation to Estate, with an attached copy of the will, to the following people or organizations (Rule 25-2):
- Each person named in the will as executor or alternate executor, who is alive at the time of the deceased’s death, and whose right to make an application for an estate grant is prior to or equal to the intended applicant’s right to make that application;
- All beneficiaries named in the will;
- Any person who would have inherited if there were no will (an intestate successor);
- The Nisg̱a’a Lisims Government, if the deceased was a Nisg̱a’a citizen;
- The applicable treaty First Nation, if the deceased was a member of a treaty First Nation.
Delivery can be done in-person or via ordinary mail. Delivery by e-mail, fax or other electronic means does not constitute delivery of the document to that person unless that person provides a written acknowledgement of receipt.
Additional delivery requirements may apply if the recipient is a minor, deceased, or mentally incompetent.
This notice is intended to ensure transparency and give interested parties an opportunity to raise concerns before the probate application moves forward.
Step 2: Wait 21 Days
After the Form P1 notice has been delivered, a 21-day waiting period is required. This allows time for anyone who received notice to review the application and respond if necessary.
Step 3: File Probate Application Documents with the Supreme Court of British Columbia
After the notice period has ended, and no notice of dispute has been filed opposing the issuance of the estate grant, the executor (or their lawyer) can proceed with the application by filing the requisite documents with the Supreme Court registry. These typically consist of the following (Rule 25-3):
- The original signed will plus two copies
- Two copies of a certificate issued under the Vital Statistics Act confirming the results of a wills notice search
- Form P2 – Submission for Estate Grant
- Form P3 – Affidavit of Applicant for Grant of Probate (or Grant of Administration with Will Annexed)
- One or more Form P9 – Affidavits of Delivery, that collectively, confirm that notice of the application was delivered to all persons set out above.
- Form P10 – Affidavit of Assets and Liabilities for Domiciled Estate Grant
Once these documents are reviewed and accepted by the court, the registry will provide notice that the estate grant has been initially approved subject to the payment of the probate fees.
Step 4: Pay the Probate Fees
Probate fees in BC are based on the gross value of the estate as set out in the Form P10, and are calculated as follows (Probate Fee Act, SBC 1999, c 4):
- No fee on the first $25,000 of the value of the estate
- $6 for every $1,000 or part of $1,000 of the value of the estate between $25,000 and $50,000, plus
- $14 for every $1,000 or part of $1 000 by which the value of the estate exceeds $50 000.
These fees are paid to the government and are separate from legal fees. These fees can be paid at the court registry. Once paid, your grant of probate will be issued.
Getting Help With Probate
Probating a will can feel overwhelming, especially while dealing with the loss of a loved one. Missing steps or filing incorrect documents can cause delays and added stress.
At Lucky Law, we help executors navigate the probate process clearly, efficiently, and with care. If you have questions about probating a will or administering an estate in British Columbia, our team is here to help.
Footnotes
Please Note: This post is for informational purposes only and does not constitute legal advice. For advice tailored to your specific situation, please contact us for a consultation.