Losing a loved one is a deeply difficult and emotional time. Amidst grief and duties like planning a funeral, families also must begin navigating their loved one’s final affairs. This often involves locating the deceased’s will, which empowers a pre-designated executor to handle matters such as paying off debts and distributing gifts to beneficiaries.
However, the estate may need to go through a court approval process governed by the Wills, Estates, and Succession Act (WESA). Depending on the circumstances, this means applying for either a grant of probate or a grant of administration. Both processes can take several months; timelines vary depending on the complexity of the estate, whether a valid will exists, and whether any disputes arise. Understanding what these processes involve and how long they typically take can help beneficiaries know what to expect and when to seek legal advice.
What Is a Grant of Probate?
A grant of probate is a document issued by the Supreme Court of British Columbia that validates a will and confirms the executor’s authority to administer the estate. This allows the executor to start fulfilling the deceased’s wishes and distributing assets.
If There Is a Will, Is Probate Required?
Probate is not legally required simply because a will exists. However, a grant of probate is necessary to access or transfer certain estate assets. Financial institutions, the BC Land Title Office, and other agencies that hold or manage assets will generally refuse to release or transfer those assets without a grant of probate from the court.
For example, your father has passed away and named you as executor of his will. In the will, your father stated that any remaining savings in his bank account are left for his grandchildren. Even though you are named the executor in the will, the bank may demand probate to verify the will is valid before you can access those funds. Whether probate is required depends on the assets involved and the requirements of the institutions holding them. Estates worth $25,000 or more may require probate.
Grant of Probate Timelines
Probate timelines can take anywhere from three months to a year. Straightforward estates may resolve more quickly, while contested or complex estates can take considerably longer. Several steps must be completed before an executor receives a grant of probate:
- The executor must locate the will, identify the deceased’s assets and liabilities, and gather the information required for the application.
- The applicant must notify the people required under BC’s Supreme Court Civil Rules. In general, the application cannot be filed until at least 21 days after the required notice and accompanying materials have been delivered.
- The applicant must complete the necessary forms and provide the court with the required information about the estate.
- The court reviews the application. Missing information, errors, or additional requirements may delay the issuance of the grant.
Delays may occur if documents are missing, information about the estate is difficult to obtain, or the application contains errors. Disputes over the will or executor, claims against the estate, and complex assets can also extend the probate timeline.
What Is a Grant of Administration?
A grant of administration is similar to a grant of probate in that it is a court mandate giving the applicant legal rights to settle estate affairs. The person appointed is called an administrator, and their role is similar to an executor’s: managing the estate, paying debts, and distributing the remaining assets to the appropriate beneficiaries or heirs.
When Is a Grant of Administration Required?
A grant of administration is necessary in a few situations:
- The deceased did not have a will and therefore had no named executor to handle their affairs.
- The deceased had a will and named an executor, but the executor is unwilling or unable to manage the estate for any reason.
- The deceased had a will, but there is no executor able and willing to act and an administrator must be appointed, or the court determines that the will is invalid and the estate requires administration without a valid will.
If the deceased left a will but the named executor cannot or will not carry out their duties, the court may appoint an administrator to manage the estate according to the will. If the deceased did not leave a valid will, the administrator distributes the estate according to BC’s intestacy laws.
Who Is Eligible to Apply for a Grant of Administration?
Only certain individuals are eligible to apply for a grant of administration, including:
- The deceased’s spouse or a person nominated by their spouse.
- One of the deceased’s adult children with consent given by a majority of the other adult children.
- A person nominated by a majority of the deceased’s adult children.
- If there are no adult children, an heir with the greatest interest in the estate or an individual nominated by other heirs.
Grant of Administration Timeline
Obtaining a grant of administration can take several months, depending on the circumstances of the estate. The application process is similar to probate, though determining who is eligible to administer the estate can add time. Disputes or complications may further delay approval.
Resolving Disputes Over an Estate
Delays and complications during estate administration can create uncertainty for executors, administrators, and beneficiaries. If you’re dealing with a dispute over a will, concerns about how an estate is being handled, or difficulties navigating the probate process, the estate litigation lawyers at Stephens & Holman can help you understand your legal options and determine the next steps.