Applications for Administration without Will Annexed

Transcription

1 CHAPTER 6 Applications for Administration without Will Annexed I. Introduction [ 6.1] II. General [ 6.2] III. Applications for Administration without Will Annexed [ 6.3] A. Persons Entitled to Apply [ 6.4] B. Documents Required for a Typical Administration Application [ 6.5] 1. General [ 6.6] 2. Summary Checklist [ 6.7] 3. Comments About Some of the Documents [ 6.8] a. Requisition Form P41 [ 6.9] b. Submission for Estate Grant Form P2 [ 6.10] c. Affidavit of Applicant for Grant of Administration without Will Annexed Form P5 [ 6.11] d. Affidavit in Support of Application for Estate Grant Form P8 [ 6.12] e. Certificate of Wills Notice Search [ 6.13] f. Affidavit(s) of Delivery of Notice Form P9 [ 6.14] g. Affidavit of Assets and Liabilities Forms P10 and P11 [ 6.15] i. General [ 6.16] ii. Form P10 and Form P11 [ 6.17] iii. Supplemental Affidavit of Assets and Liabilities Forms P14 and P15 [ 6.18] JAN

2 B.C. PROBATE AND ESTATE ADMINISTRATION iv. Guidelines for Completion of Statement of Assets and Liabilities [ 6.19] v. Registry Guidelines [ 6.20] vi. Valuation [ 6.21] vii. Part II (Personal Property) [ 6.22] viii. Time of Filing Affidavit of Assets and Liabilities [ 6.23] h. Affidavit of Translator Form P12 [ 6.24] i. Comments of Public Guardian and Trustee [ 6.25] C. Procedure [ 6.26] 1. Review of Application for Administration without Will Annexed [ 6.27] 2. Probate Fees [ 6.28] 3. Issuance of Grant [ 6.29] D. Other Grants of Administration [ 6.30] 1. General [ 6.31] 2. Small Estates [ 6.32] 3. Minors [ 6.33] a. General [ 6.34] b. Documents and Procedure [ 6.35] 4. Administration in Special Circumstances (WESA, Section 132) [ 6.36] a. General [ 6.37] b. Documents and Procedure [ 6.38] 5. Administration Pending Legal Proceedings (Formerly Administration Pendente Lite) [ 6.39] a. General [ 6.40] b. Documents and Procedure [ 6.41] 6. Administration by Attorney [ 6.42] 7. Administration of Unadministered Estate (Formerly Administration de Bonis Non) [ 6.43] a. When an Administrator Ceases to Act [ 6.44] b. Documents and Procedure [ 6.45] 8. Special Administration When Personal Representative Is Absent [ 6.46] 6-2 JAN 2014

3 APPLICATIONS FOR ADMINISTRATION [ 6.1] 9. Appointment of Representative for Legal Proceedings [ 6.47] a. Commentary [ 6.48] b. Documents and Procedure [ 6.49] E. Security for Grant of Administration [ 6.50] 1. General [ 6.51] 2. Documents and Procedure [ 6.52] 3. Bonding Costs [ 6.53] 4. Cancellation of Bond [ 6.54] I. INTRODUCTION [ 6.1] This chapter deals with the procedures and documents to obtain grants of administration where (1) there is no will, and (2) the matter is not contentious. See chapter 5 (Applications for Probate and Administration With Will Annexed) for a discussion of applications for administration where there is a will, and chapter 18 (Proceedings Relating to Grant Applications) for a discussion of contentious probate matters. Textbook references relied on include Hull and Hull, Macdonell, Sheard and Hull on Probate Practice, 4th ed. (1996); Tristram and Coote s Probate Practice, 31st ed. (2012); and Williams, Mortimer, and Sunnucks on Executors, Administrators, and Probate, 20th ed. (2013). This chapter reflects the changes to the law and procedures effected by the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the WESA ) and related amendments to the rules of court. Most WESA provisions are in force on March 31, 2014, concurrent with the repeal of the Estate Administration Act, R.S.B.C. 1996, c. 122; the Probate Recognition Act; the Wills Act, R.S.B.C. 1996, c. 489; and the Wills Variation Act, R.S.B.C. 1996, c Also on March 31, 2014, the Supreme Court Civil Rules, B.C. Reg. 168/2009 (referred to in this chapter as the Court Rules ) are amended, inter alia: (1) by repealing Rules 21-4 and 21-5 (the Former Rules ), which dealt with contentious estates and non-contentious estates, respectively, and by adding a new part entitled Part 25 Estates. Part 25 consists of Rules 25-1 to (referred to in this chapter as the JAN

4 [ 6.1] B.C. PROBATE AND ESTATE ADMINISTRATION Part 25 Rules or the Rules ), which cover all aspects of estate administration, including both contentious and non-contentious matters; and (2) by repealing Forms 90 to 107 of Appendix A (being the forms prescribed for use under the Estate Administration Act (the EAA ) and the Former Rules) and adding a new appendix entitled Appendix A.1 Probate Forms ( Appendix A.1 ), consisting of Forms P1 to P43. Regarding the terminology used in this chapter, please note the following: (1) Different terms are used in the WESA and the Rules to refer generically to any of a grant of probate, a grant of administration with or without will annexed, an ancillary grant of probate, an ancillary grant of administration with or without will annexed, or resealing of a grant of probate or administration. The term representation grant is used in the WESA, whereas the term estate grant is used in the Rules. The definitions are substantially the same (see s. 1(1) of the WESA and Rule 25-1(1)), the most obvious difference being that the definition of representation grant includes resealing of a grant of administration, whereas the definition of estate grant does not. As the term estate grant covers the kinds of applications discussed in this chapter, that term, rather than representation grant, is used in this chapter. (2) Throughout the Rules, applications for administration are generally distinguished as being either for administration with will annexed or for administration without will annexed, as the two types of application involve different procedures and documents. In this chapter, however, which deals only with applications where there is no will, the briefer term administration is used in place of administration without will annexed, wherever possible. Both the WESA and the Part 25 Rules contain transitional provisions applicable to applications for estate grants made before, but not completed by, March 31, However, unless otherwise noted, the discussion in this chapter is limited to applications made after March 31, 2014, where the transitional provisions do not apply. For detailed commentary on the pre-wesa law and procedure, see the previous version of this chapter (available as a PDF on the CD-ROM that accompanies the Manual, and within the online version of the 6-4 JAN 2014

5 APPLICATIONS FOR ADMINISTRATION [ 6.2] Manual). See 1.2, 1.3, and 3.2 for discussion of the transition rules for the WESA and Part 25 Rules. II. GENERAL [ 6.2] The Supreme Court is a court of original jurisdiction in all matters (Supreme Court Act, R.S.B.C. 1996, c. 443). The WESA designates the Supreme Court as the court for all proceedings under the Act. See 5.3 to 5.8 for a discussion of territorial jurisdiction, and chapter 21 (Conflict of Laws in Estate Administration) for a discussion of jurisdiction and choice of law. See also: (1) 5.10 to 5.13 for a discussion of practice references, the place of application and the time application; and (2) 5.14 for some general comments on the application documents. As indicated in 6.1, effective March 31, 2014, the procedure and documents required for applications for administration are governed by the Part 25 Rules. The new requirements include several significant changes to the previous practice, including the following: (1) an applicant is not required to file renunciations and/or consents from persons having a prior or equal right to apply, or to issue a notice to next of kin to any such person who does not renounce and/or consent; (2) consents from unpaid creditors of the deceased are not required; instead creditors having claims exceeding $10,000 must be given notice of the application (25-2(2)(b)(ii)); (3) an applicant is not required to provide security as a condition of receiving a grant except in specified circumstances (see WESA, s. 128(1)); (4) it is no longer necessary to submit a draft order with every application for administration, but only in the circumstances specified throughout this chapter. Whenever practice matters are in doubt, it may be prudent to consult the registrar before an application is made. JAN

6 [ 6.3] B.C. PROBATE AND ESTATE ADMINISTRATION III. APPLICATIONS FOR ADMINISTRATION WITHOUT WILL ANNEXED [ 6.3] A. PERSONS ENTITLED TO APPLY [ 6.4] Section 130 of the WESA provides that where a person dies without a will, administration of the person s estate may be granted to one or more of the following persons, in the following order of priority: (1) the spouse of the deceased person or a person nominated by the spouse (see s. 2 of the WESA for the definition of spouse ); (2) a child of the deceased person having the consent of a majority of the children of the deceased person; (3) a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person s children; (4) a child of the deceased person not having the consent of a majority of the deceased person s children; (5) an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration; (6) an intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration; (7) any other person the court considers appropriate to appoint, including the Public Guardian and Trustee subject to the Public Guardian and Trustee s consent. With respect to paragraphs (2), (3) and (5) above, the Part 25 Rules do not require the applicant to file evidence that the consent of the other children or intestate successors, as applicable, has been sought or obtained, and no form of consent is prescribed. This change from the previous practice is due to the new 21-day notice requirement under Rule 25-2, which will give the other children or intestate successors time to file a notice of dispute (see Rule 25-10(1)) if they oppose the application. With respect to paragraph (7) above (which tracks s. 130(g) of the WESA), neither the WESA nor the Part 25 Rules indicate how any other person the court considers appropriate to appoint is to be 6-6 JAN 2014

7 APPLICATIONS FOR ADMINISTRATION [ 6.5] selected. The intention again in light of the new 21-day notice requirement is to allow any person to apply for the grant, anticipating that the persons who have received notice will have time to file a notice of dispute if they oppose the application. A person who is applying for administration based on s. 130(g) of the WESA will indicate that fact in his or her application for administration. Specifically, he or she will complete paragraph 3 of the affidavit of applicant (Form P5) to read I am a person referred to in paragraph (g) of section 130 of the Wills, Estates and Succession Act (see 6.6 to 6.25 for a detailed discussion of the application documents). It is anticipated that the person applying as aforesaid will be appointed unless there is a competing application and/or a notice of dispute has been filed in respect of the application. As between competing applications, the first come, first served rule will likely apply, with the later applicant having the onus of showing why the earlier applicant should not be appointed. If a notice of dispute has been filed, the question of which application succeeds will be determined through the process detailed in Rule The current wording of s. 130(g) of the WESA (as restated in paragraph (7) above) is unclear as to when the Public Guardian and Trustee s consent is required for an appointment made under that provision. The Ministry has indicated that the Public Guardian and Trustee s consent is required only for the appointment of the Public Guardian and Trustee and not for the appointment of any other person. It is expected that s. 130(g) will be amended to clarify that point. B. DOCUMENTS REQUIRED FOR A TYPICAL ADMINISTRATION APPLICATION [ 6.5] 1. GENERAL [ 6.6] The following sections ( 6.7 to 6.25) discuss the documents required for a typical application for a grant of administration; that is, an application where the deceased died intestate, one of the intestate successors is making the application, and no minors or mentally incompetent persons are beneficially interested in the estate. Some unusual or complex applications are dealt with later in this chapter. JAN

8 [ 6.7] B.C. PROBATE AND ESTATE ADMINISTRATION 2. SUMMARY CHECKLIST [ 6.7] Effective March 31, 2014, pursuant to Rule 25-3(2) and (if applicable) Rule 25-14(1)(a), the documents required for a typical application for administration without will annexed are: (1) a submission for estate grant in Form P2 (only in limited circumstances would the probate registry file be opened instead with a Form P41 requisition; see 6.9 (Form P2 appears at FP 25 in the Forms and Precedents section); (2) an affidavit of applicant for grant of administration without will annexed in Form P5 from the applicant (or, if there are two or more applicants, from at least one of them) (Form P5 is found at FP 28); (3) if there are two or more applicants, an affidavit in support of application for estate grant in Form P8 from each applicant who has not sworn the affidavit referred to in paragraph (3) above (Form P8 is found at FP 29); (4) two copies of a certificate of wills notice search (see further 3.8); (5) if an order is required (for example, a dispensing order under Rule 25-2(14)), a notice of application pursuant to Rule 25-14(1), an affidavit in support and a draft order (see FP 37 to FP 39 for sample forms) (but see further the comments at 5.19(6)); (6) one or more affidavit(s) of delivery, in Form P9, that, collectively, confirm that notice of the application was delivered as required by Rule 25-2 to all persons to whom notice must be given (if necessary, an order dispensing with notice to any such person can be applied for pursuant to Rules 25-2(14) and 25-14(1)(a)) (Form P9 is found at FP 30); (7) an affidavit of assets and liabilities from the applicant (or if there are two or more applicants, from at least one of them), in Form P10 (if the application is for a domiciled estate grant) or Form P11 (if the application is for a non-domiciled estate grant; see Rule 25-3(8)) (note that this affidavit may or may not be submitted with the originating documents depending on whether an authorization to obtain estate information is required; see 5.38) (Forms P10 and P11 are found at FP 31 and FP 32); (8) if court-certified copies of any documents are needed, such as the estate grant in Form P19 or the statement of assets, liabilities and distribution (disclosure statement) in Form P10 or P11, a requisition in Form 17 requesting the certified copies; 6-8 JAN 2014

9 APPLICATIONS FOR ADMINISTRATION [ 6.8] (9) for each document filed that is not written in the English language, an affidavit of translator in Form P12 (see FP 23); (10) the written comments of the Public Guardian and Trustee if required pursuant to s. 124 of the WESA (i.e., if notice of the application must be given to the Public Guardian and Trustee on behalf of a minor or a mentally incompetent person pursuant to Rule 25-2(8) or (11)); (11) a cheque for the probate fee, to be submitted when the probate registry has advised that the application has been approved and has confirmed the amount of the fee. 3. COMMENTS ABOUT SOME OF THE DOCUMENTS [ 6.8] Under each document heading are comments about the document in question. Where appropriate, these comments are cross-referenced to the forms located in the Forms and Precedents section. a. Requisition Form P41 [ 6.9] See Rule 2-1(2.1), Rule 25-14(1) and FP 24. Under the Former Rules, applications for grants of probate or administration were made under Rule 21-5(4) by filing a requisition in Form 17 of Appendix A of the Court Rules, together with an affidavit of executor or administrator and any further affidavits required by the Court Rules. Effective March 31, 2014, the new Rule 2-1(2.1) provides that a proceeding to which the Part 25 Rules apply (being a proceeding in relation to the administration of an estate) may be started by the filing of any of the following: (1) a submission for estate grant under Rule 25-3(2); (2) a submission for resealing under Rule 25-6(2); (3) a requisition under Rule 25-12(2) or 25-14(1) or (2); or (4) a petition under Rule 25-14(4). The Part 25 Rules do not expressly require a requisition be filed with a submission for estate grant in cases where there is no related application under Rule 25-12(2) or 25-14(1) or (2), as referred to in paragraph (3) above. JAN

10 [ 6.10] B.C. PROBATE AND ESTATE ADMINISTRATION Under the Part 25 Rules, the intent is that a submission for estate grant is the originating document. In certain circumstances the estate proceeding may be commenced by a requisition in Form P4 with a supporting affidavit and draft desk order if the application is by consent or without notice. If certified copies of any of the documents are requested, a requisition in Form P4 requesting the documents should be filed (Rule 23-1(9)). In instances where an order is required with respect to notice, the intent is that a submission for estate grant be filed to commence the proceeding and the application with respect to notice (or other type of application) be filed at the same time or subsequently in accordance with Rule 25-14(1). (Practitioners should watch for a possible amendment to Rule 25-14(1) that would allow such an application to be made in accordance with Part 8, allowing either a notice of application or a desk order under Rule 8-3 or Rule 8-4, if applicable). b. Submission for Estate Grant Form P2 [ 6.10] See Rule 25-3(2)(a) and FP 25. Form P2, the submission for estate grant, has been drafted for use by self-represented applicants as well as lawyers, and for use in applications for any estate grant other than an application for resealing. To facilitate such general usage, Form P2 includes instructions for completion of the form; alternative provisions with check boxes to select the appropriate ones; and four schedules, only one of which will apply to each application. The result is a lengthy document, although much of it will be unused in any given application. In most cases, the probate registry will prefer a trimmed-down version of the form (especially from counsel), with only the applicable sections presented. The instructions in Form P2 indicate that the style of cause is to be completed by inserting the legal name of deceased (see further 5.14, with respect to variations in the deceased s name). In accordance with general practice, the style of cause chosen must be used consistently throughout the application. Given the user aides built into Form P2, as referred to above, completing the remainder of the form should be a relatively simple process of filling in the blanks and checking the appropriate boxes, as instructed. However, the following points are worth noting: (1) The opening section of Form P2 is drafted in the first person (i.e., it states I am/we are applying..., I am/we are submitting..., 6-10 JAN 2014

11 APPLICATIONS FOR ADMINISTRATION [ 6.11] etc.). However, the signature provision at the end of the section allows for the form to be signed either by the applicant(s) or by the lawyer for the applicant(s). Presumably, if the form is to be signed by the lawyer rather than the applicant(s), then the first-person provisions mentioned above should be put into third-person form. Form P2 as currently drafted does not provide for that; however, Rule 22-3(1) permits variations to the forms in Appendix A and A.1. (2) In the opening section of Form P2 the applicant must indicate whether: (a) an affidavit of assets and liabilities is being submitted with the application, and thus an authorization to obtain estate information is not required; or (b) the applicant is seeking an authorization to obtain estate information so that an affidavit of assets and liabilities can be prepared and submitted. (See 6.23 for a discussion of when an authorization to obtain estate information may be required.) c. Affidavit of Applicant for Grant of Administration without Will Annexed Form P5 [ 6.11] See Rule 25-3(2)(b)(ii) and FP 28. The affidavit of applicant is drafted to be sworn by only one applicant, even where two or more applicants are named in the submission for estate grant. That raises a question as to how the affidavit of applicant is to be dealt with on applications with more than one applicant. There appear to be three options, namely: (1) the affidavit of applicant can be modified (modifications are permitted by Rule 22-3(1)) for swearing by all of the applicants; (2) the affidavit of applicant can be sworn by only one of the applicants with each of the others swearing an affidavit in support in Form P8; or (3) two or more applicants can join in making the affidavit of applicant but do so individually by each of them swearing a separate affidavit of applicant. See further the discussion of these options at JAN

12 [ 6.12] B.C. PROBATE AND ESTATE ADMINISTRATION d. Affidavit in Support of Application for Estate Grant Form P8 [ 6.12] See Rule 25-3(2)(c) and FP 29. An affidavit in support, in Form P8, is required only if there are two or more applicants and any of them has not sworn the affidavit of applicant in Form P5. In such a case, each applicant who has not sworn the affidavit of applicant must make an affidavit in Form P8. An applicant making a Form P8 affidavit swears that he or she has read all the documents being submitted on the application and that he or she believes the information contained in them to be accurate. The applicant also undertakes to administer the estate as required by law and acknowledges that he or she will be subject to the legal responsibility of a personal representative. e. Certificate of Wills Notice Search [ 6.13] See Rule 25-3(2)(d) and 5.14, paragraph (4). f. Affidavit(s) of Delivery of Notice Form P9 [ 6.14] See Rule 25-3(2)(f) and FP 30. The notice requirements under the WESA differ substantially from those under the EAA, in terms of the form of notice, the persons required to be given notice, and (where applicable) the form of confirmation of delivery of notice. In the case of an application for administration without will annexed, the WESA requirements are as follows: (1) Pursuant to Rule 25-2(1), the notice must be in Form P1, be signed by the applicant or the applicant s lawyer, and otherwise comply with Rule 25-2(3). (2) Per Rule 25-2(2)(b), on an application for administration without will annexed, the persons who must be given notice are: (a) each person (other than the intended applicant) who is an intestate successor of the deceased (see ss. 20 to 25 of the WESA for the rules for determining who are the intestate successors and their respective entitlements in a given case, and see 1.62 to 1.72 for commentary on these sections); (b) each unpaid creditor of the deceased whose claim exceeds $10,000; 6-12 JAN 2014

13 APPLICATIONS FOR ADMINISTRATION [ 6.14] (c) if the deceased was a Nisga a citizen, the Nisga a Lisims government; (d) if the deceased was a member of a treaty first nation, the treaty first nation; (e) if any person who must be given notice is a minor or a person who is or may be mentally incompetent, the Public Guardian and Trustee and other persons as required under Rule 25-2(8) and (9) (in the case of a minor) or Rule 25-2(10) and (11) (in the case of a person who is or may be mentally incompetent). Note that where an applicant gives notice to the Public Guardian and Trustee pursuant to Rule 25-2(1) and subsequently files any documents referred to in Rule 25-3(2) or (9), the applicant must also deliver filed copies of those documents to the Public Guardian and Trustee (see Rule 25-3(11)). (Note that s. 182(1) of the WESA requires that notice be given to every guardian of the minor, which appears to go further than the Rule 25-2(8) requirements for giving notice to a minor. Practitioners should watch for a possible amendment to s. 182(1); generally, every guardian has financial responsibility for the child (see ss. 40, 41, and 45 of the Family Law Act, S.B.C. 2011, c. 25), except where a court order or agreement allocates the financial responsibility for the child to one guardian.) (3) Delivery of a notice under Rule 25-2 is to be confirmed by one or more affidavits of delivery in Form P9 (see FP 30). By the definition of deliver in Rule 25-1(1), delivery of the notice may be effected by (a) personal delivery; (b) ordinary mail; or (c) , fax, or other electronic means sent to an electronic address provided by the intended recipient for that purpose. Rule 25-2(2)(a) indicates that the notice may be delivered either by the applicant or by another person on the applicant s behalf. (4) Under the WESA, the time of delivery of a notice is important, as Rule 25-2(1) provides that an application for an estate grant cannot be submitted for filing less than 21 days after the delivery of notice to the persons required to receive it. The time of delivery by ordinary mail or electronic means is determined according to Rule 25-2(5) as follows: JAN

14 [ 6.15] B.C. PROBATE AND ESTATE ADMINISTRATION (a) if the notice is sent for delivery to a person by ordinary mail to the person s mailing address, the notice is deemed to be delivered on the date that it is mailed (see Rule 25-2(5)(a)); and (b) if the notice is transmitted for delivery to a person by , fax, or other electronic means to the electronic address provided by the person for that purpose, the notice is deemed to be delivered on the date that it is transmitted; however, sending the notice to a person by electronic means does not constitute delivery to that person unless the person provides a written acknowledgment of receipt. In that case, the affidavit of delivery in Form P9 must state that the acknowledgment has been provided and will be retained by the applicant (see Rule 25-2(5)(b), (6), and (7)). It should be noted that the rules for delivery set out above apply only to the delivery of notices under Rule 25-2, and they differ from the general rules set out in Rule 25-1(3) for the delivery of documents under the Part 25 Rules. g. Affidavit of Assets and Liabilities Forms P10 and P11 [ 6.15] See WESA, s. 122, Rule 25-3(2)(g), and FP 31 and FP 32. i. General [ 6.16] Under the Former Rules there was a question as to what property of the deceased an applicant for probate or administration was required to disclose. The question was whether the applicant must disclose: (1) all property that passed to any personal representative of the deceased; or (2) only the property that passed to the applicant as the deceased s personal representative. The wording of Forms 91, 92, and 93 (being the prescribed forms of affidavit of executor and affidavit of administrator) indicated that option (1) was the correct answer. Under the WESA, however, the question is resolved by s. 122(1)(b), which indicates that option (2) is the correct answer. Specifically, s. 122(1)(b) states that an applicant for probate or administration must disclose information as required under the Rules of 6-14 JAN 2014

15 APPLICATIONS FOR ADMINISTRATION [ 6.17] Court concerning the property of the deceased person, irrespective of its nature, location or value, that passes to the applicant in his or her capacity as the deceased person s personal representative [emphasis added]. Also under the Former Rules, the disclosure statement was required to disclose the distribution of the estate by setting out, in Part IV of the statement, the names and addresses of the beneficiaries, their relationship to the deceased, and the property passing to them. In the form of disclosure statement prescribed under the Part 25 Rules, as detailed below, no disclosure of the distribution is required. ii. Form P10 and Form P11 [ 6.17] Pursuant to Rule 25-3(2)(g), the grant application must include an affidavit of assets and liabilities for domiciled estate grant in Form P10, provided that if Rule 25-3(8) applies, an affidavit of assets and liabilities for non-domiciled estate grant in Form P11 may be filed instead. Rule 25-3(8) provides that an affidavit in Form P11 may be filed if: (1) the deceased was not domiciled or ordinarily resident in British Columbia at the time of death; (2) all property of the deceased situated outside British Columbia, if any, has been, is being or will be: (a) administered by a foreign personal representative; or (b) otherwise administered under the law of a foreign jurisdiction. Each of Form P10 and P11 includes, as Exhibit A thereto, a statement of assets, liabilities and distribution. In each case the words and Distribution appear in the heading to the statement as it is set out in Appendix A.1. That was done to make the terminology used in the probate forms consistent with that used in the Probate Fee Act, S.B.C. 1999, c. 4, which refers to a Statement of Assets, Liabilities and Distribution. However, as indicated in 6.16, the statement itself calls for the disclosure of assets and liabilities only, and not for the disclosure of the distribution particulars. Also, in both Forms P10 and P11, the statement of assets and liabilities (referred to in the remainder of this chapter as the disclosure statement ) omits the previous requirement to disclose any safety deposit box held by the deceased. JAN

16 [ 6.17] B.C. PROBATE AND ESTATE ADMINISTRATION As under the pre-wesa legislation, the property disclosed in either Form P10 or P11 must include assets in which the deceased had a beneficial interest only, but not assets that do not pass to the personal representative (for example, assets held in joint tenancy in which both legal and equitable title are passing to the surviving joint tenant, and the proceeds of life insurance policies or benefit plans that pass to a named beneficiary designated under the policy or plan; see 2.7 and 4.3 to 4.39 for a discussion of such assets). The significant differences between the Form P10 and Form P11 are as follows: (1) Form P11, but not Form 10, includes paragraphs stating: (a) that the deceased was not ordinarily resident in British Columbia at the time of death; and (b) that all property of the deceased situated outside British Columbia has been, is being, or will be administered by a foreign personal representative or otherwise under the law of a foreign jurisdiction. (Note that Rule 25-3(8) provides that Form P11 can be used if the deceased was not domiciled or ordinarily resident in British Columbia. Form P11, paragraph 2, omits the reference to domicile, saying only that the deceased was not ordinarily resident in British Columbia. Similarly, in the Probate Fee Act, the definition of value of the estate refers only to a deceased being ordinarily resident, not domiciled or ordinarily resident. The WESA makes domicile, as well as ordinary residence, a relevant factor. The Ministry of Justice has advised that domicile is not referred to in the forms because it is not a commonly understood concept. If an applicant must rely on the fact that the deceased was domiciled in a foreign jurisdiction in order to use a Form P11, the form can be modified (in accordance with Rule 22-3) to refer to the deceased not being domiciled in British Columbia.) (2) Form P10 requires the disclosure of: (a) all property of the deceased, wherever located, that passes to the applicant as personal representative; (b) the value of that property; and (c) any liabilities charging that property. Form P11 requires the same information to be disclosed, but only as to the deceased s property within British Columbia that passes to the applicant as personal representative JAN 2014

17 APPLICATIONS FOR ADMINISTRATION [ 6.18] iii. (Note that the phrase in accordance with section 138 of the Wills, Estates and Succession Act in paragraph 3(a) of Form P10 and paragraph 5(a) of Form P11 is unnecessary and is expected to be removed.) Supplemental Affidavit of Assets and Liabilities Forms P14 and P15 [ 6.18] See Rule 25-3(9) and FP 35 and FP 36. Rule 25-3(9) requires a supplemental affidavit of assets and liabilities to be filed if, after applying for an estate grant, the applicant discovers either that there are additional assets or liabilities that were not disclosed in the affidavit of assets and liabilities that was filed, or that the information contained in that affidavit is otherwise incorrect or incomplete. The supplemental affidavit must be in Form P14 if the initial affidavit was in Form P10, or in Form P15 if the initial affidavit was in Form P11. Rule 25-3(9) states that the supplemental affidavit must be filed promptly, whether or not an estate grant has been issued in response to the application, and any probate fees payable in relation to the filing must be paid. Where the grant has already been issued, any additional probate fees payable on the filing of the supplemental affidavit will be levied at the rate that was in effect at the time the grant was issued (Re Henry Estate (1994), 3 E.T.R. (2d) 216 (B.C.S.C.)). iv. Guidelines for Completion of Statement of Assets and Liabilities [ 6.19] See the discussion of registry guidelines, valuation, and personal property at 6.20 to v. Registry Guidelines [ 6.20] There are no published probate registry guidelines for disclosure of assets; the former 1988 guidelines are no longer in use in the registries. Applicants are required to disclose the value of the estate as set out in s. 1 of the Probate Fee Act for the purposes of calculating the appropriate fee. As discussed further in 6.27, a registrar is entitled to or required to reject an application or require further information or documents where the application material is incomplete or ambiguous, where it JAN

18 [ 6.21] B.C. PROBATE AND ESTATE ADMINISTRATION contains obvious errors, or where it raises questions that demand further explanation. On the other hand, a registrar cannot set his or her own requirements for an application, in effect adding additional prerequisites to the granting of probate or administration beyond those statutorily authorized (Re Bray Estate, 2008 BCSC 205, following Re Bradford Estate (1990), 40 E.T.R. 50 (B.C.S.C. Master)). Prudent practice suggests that all assets should be listed in the disclosure statement with sufficient particulars to allow the registrar to fulfil his or her statutory duties. For this purpose, the descriptions of assets listed in the inventory (see chapter 2) may be helpful. It is possible to use an extended form (see FP 34) or to use the printed form shown as Exhibit A in each of Forms P10 and P11 and to attach a schedule. vi. Valuation [ 6.21] See the discussion of valuation in 2.11 to Wherever possible, the asset values shown in the disclosure statement should be the market value of each asset at the date of death. If an asset has no commercial value, that fact should be noted. If it is not possible to state the value of any assets accurately at the time of filing, it may be advisable for the applicant, in the submission for estate grant, to request an authorization to obtain estate information, rather than an estate grant (see 6.10, Rule 25-4(1) and Rule 25-8). While the best practice would be for the applicant to request an authorization to obtain estate information, it remains open to the applicant to apply for the estate grant on the basis of the information then available and subsequently file a supplemental affidavit of assets and liabilities pursuant to Rule 25-3(9), once the value of the assets and liabilities as at the date of death has been determined, as discussed in vii. Part II (Personal Property) [ 6.22] Under the Probate Fee Act, probate fees are assessed on the value of the estate. As defined in s. 1 of the Act, the value of the estate is the gross value, as disclosed in the application for the estate grant, of: (1) the deceased s real and tangible personal property situated in British Columbia; and 6-18 JAN 2014

19 APPLICATIONS FOR ADMINISTRATION [ 6.23] (2) if the deceased was ordinarily resident in British Columbia at his or her death, the deceased s intangible personal property, wherever situated. Pursuant to this definition, where the deceased was ordinarily resident in British Columbia, the value of all property of the deceased, of whatever nature (whether real property or tangible or intangible personal property), and wherever situated, is subject to probate fees. However, where the deceased was not ordinarily resident in British Columbia, probate fees are payable only on the value of the deceased s real property and tangible personal property situated within British Columbia. Thus, the value of the deceased s intangible personal property within the province would not be subject to probate fees. Notwithstanding that, paragraph 5(a) of Form P11 requires the disclosure of all of the property of the deceased within British Columbia, irrespective of its nature or value. See further In these circumstances, if the property within British Columbia of a non-resident deceased includes both tangible and intangible personal property, the two types of assets should be listed separately in the disclosure statement. Specifically, Part II of the disclosure statement should be divided into two separate sections headed Tangible Personal Property and Intangible Personal Property, respectively, and each asset should be listed under the appropriate heading. viii. Time of Filing Affidavit of Assets and Liabilities [ 6.23] Rule 25-3(7) provides that the affidavit of assets and liabilities may be filed either concurrently with or subsequent to the filing of the other documents to be filed on the application. As indicated below, allowing the affidavit to be filed later is intended to assist an applicant who has had difficulty obtaining from third parties the required information regarding the deceased s assets and liabilities. Pursuant to Rule 25-4(1) and (2), where the affidavit of assets and liabilities is not filed with the other application materials, and where the registrar finds the application otherwise to be in order, the registrar will issue an authorization to obtain estate information in Form P18, rather than an estate grant. The applicant may submit that authorization to third parties to obtain the information required to complete the affidavit of assets and liabilities. Pursuant to Rule 25-4(1)(b), once that affidavit has been filed and the probate fee has been paid, the registrar will issue an estate grant in Form 19. JAN

20 [ 6.24] B.C. PROBATE AND ESTATE ADMINISTRATION h. Affidavit of Translator Form P12 [ 6.24] See Rule 25-3(2)(h) and FP 23. Rule 25-3(10) requires an affidavit of translator in Form P12 to be filed concurrently with any document referred to in Rule 25-3(2) or (3) that is the subject of a translation. i. Comments of Public Guardian and Trustee [ 6.25] See WESA, s Where the Public Guardian and Trustee has been given notice of an application for an estate grant, s. 124(1) of the WESA requires that the grant not be issued until the Public Guardian and Trustee s written comments regarding the application have been provided to the court, unless the applicant satisfies the court that the grant should be issued sooner. In addition, s. 124(1) of the WESA requires that the Public Guardian and Trustee be provided with a copy of the grant within 45 days after it is issued. C. PROCEDURE [ 6.26] 1. REVIEW OF APPLICATION FOR ADMINISTRATION WITHOUT WILL ANNEXED [ 6.27] See Rule 25-4(1), (2), and (4) and Rule The above-mentioned Rules deal with the registrar s powers and duties on reviewing an application for administration, the acceptance or rejection of an application, and the procedure involved in the case of a rejection. Specifically, those Rules provide as follows: (1) Rule 25-4(1): If the registrar is satisfied that the application meets the conditions set out in Rule 25-4(2) (i.e., the notice requirements have been complied with, the application materials are in order, all fees in respect of the application have been paid, there is no outstanding notice of dispute regarding the estate, etc.), then: (a) if the applicant has not filed the affidavit of assets and liabilities required for the application, the registrar must issue to the applicant an authorization to obtain estate information in Form P18 (see FP 33); or (b) when the affidavit of assets and liabilities has been filed, either with or after the filing of the other application materials, the 6-20 JAN 2014

21 APPLICATIONS FOR ADMINISTRATION [ 6.28] registrar must issue an estate grant in Form P19 (FP 40), subject to the comments of the Public Guardian and Trustee being received, if required under s. 124 of the WESA. (2) Rule 25-4(2): Unless the registrar is satisfied that all of the conditions specified in the Rule (as summarized in paragraph (1) above) have been met, the registrar must not issue an authorization to obtain estate information or an estate grant. (3) Rule 25-4(4): If the registrar refuses to issue an estate grant or an authorization to obtain estate information, the registrar must give the applicant notice in writing of: (a) any defect in the application materials; (b) any other question or matter that prevents the registrar from approving the application; or (c) any further information or material that the registrar requires the applicant to provide. Pursuant to Rule 25-4(5), such notice may be given by any convenient means, including ordinary mail, fax, or sent to a mailing address or electronic address provided by the applicant in the submission for estate grant. Pursuant to Rule 25-4(6), on receiving a notice of refusal from the registrar as aforesaid, the applicant may do either or both of the following: (1) file further information and material to address the defects or deficiencies identified by the registrar; or (2) apply under Rule 25-9 for a hearing by the court. (Note that Rule 25-9(2) provides for an application for a desk order (by the filing of a requisition in Form 31 and a draft order in Form 35), whereas Rule 25-4(6)(b) refers to a hearing ; this discrepancy has been brought to the attention of the drafters.) 2. PROBATE FEES [ 6.28] Probate fees are discussed in detail in chapter 7 of this Manual. Briefly, no probate fee is payable to obtain an estate grant if the value of the estate (as defined in the Probate Fee Act, s. 1), does not exceed $25,000 (Probate Fee Act, s. 2) (Court Rules, Appendix C, Schedule 1, Item 1). (An amendment effective July 1, 2013 eliminated JAN

22 [ 6.29] B.C. PROBATE AND ESTATE ADMINISTRATION the requirement for payment of the basic file-commencement fee (formerly $200) for estates that do not exceed $25,000.) If the value of the estate exceeds $25,000, the fee payable is the basic fee noted above, plus: (1) $6 for each $1,000 or part of $1,000 of estate value in excess of $25,000, up to $50,000, plus (2) $14 for each $1,000 or part of $1,000 of estate value in excess of $50, ISSUANCE OF GRANT [ 6.29] Pursuant to Rule 25-4(1), if a registrar approves an application for an estate grant, the registrar has the authority to issue the grant directly, without an order of the court. Where a registrar has rejected an application and the applicant applies to the court under Rule 25-9, the application is not in the nature of an appeal and the court may approve the application. In that case, the registrar must issue the estate grant in accordance with the direction (see Rules 25-9(3) and (4)). Form P19 is the only prescribed form of estate grant under the Part 25 Rules, and it contains optional clauses for use where there is a will and where there is not, and in other specific circumstances. The registry will prepare the Form P19. D. OTHER GRANTS OF ADMINISTRATION [ 6.30] 1. GENERAL [ 6.31] The documents and procedures are the same for all applications of administration without will annexed, subject to the exceptions discussed below. Pursuant to WESA, s. 129(3), the registrar has authority to grant probate and administration of unopposed applications that are in accordance with the Rules. As long as a notice of dispute has not been filed and an application is not required under Rule 25-14, the registrar should be able to approve the majority of applications. Except in certain circumstances (as described elsewhere in this chapter and in the Manual), court orders for administration and administration with will annexed are not required under the WESA and the new Rules JAN 2014

23 APPLICATIONS FOR ADMINISTRATION [ 6.32] 2. SMALL ESTATES [ 6.32] Until March 31, 2014, s. 20 of the EAA provides a special procedure for obtaining administration with or without will annexed (but not probate) of an estate with a value of $25,000 or less. Under s. 20, the registrar can issue the grant without the requirement for a court order or payment of any fee. Sections 109 to 120 of the WESA (the small estates sections ) have been proposed to provide in more comprehensive terms for the administration of small estates, whether testate or intestate, by providing for the issuance of a small estate declaration in place of an estate grant. However, the small estates sections are not brought into force on March 31, 2014, and it is uncertain when they will take effect. As the whole of the EAA, including s. 20, is repealed on March 31, 2014, it appears that unless and until the small estates sections are brought into force, no special procedure will be in place for the administration of small estates. 1 Historically, small estates have been dealt with in several ways. When the estate consists of one or more accounts with a bank, trust company, or credit union, it may be possible to reduce the balance to nil after death by ensuring that funeral and other testamentary expenses, including any income tax liability of the deceased, are presented to the relevant financial institution for payment from the account(s). When the balance of the account is larger than the anticipated debts, the financial institution can often be persuaded to apply its internal policy permitting the transmission of the account balance to the personal representative (and sometimes, the beneficiaries or intestate heirs) without a grant. The institution will require that the personal representative and beneficiaries or intestate heirs enter into an indemnification agreement protecting the institution. This informal process works best when the institution is familiar with both the deceased account holder and the persons entering into the indemnification agreement. Institutional policies vary widely as to the maximum amount that will be transferred on an indemnification, and some institutions no longer permit any such arrangement. 1. The following paragraphs have been adopted from Fiona Hunter, Estate Administration Issues in the Wills, Estates and Succession Act Transition Guide, looseleaf and online (CLEBC, 2010). JAN

24 [ 6.33] B.C. PROBATE AND ESTATE ADMINISTRATION When the estate consists only of Canada Savings Bonds, the Bank of Canada permits transmission of the bonds where: (1) a non-spouse beneficiary is entitled to the deceased s entire estate, by will or by intestacy, and the value of the bonds does not exceed $20,000; or (2) the beneficiary is the surviving spouse, in which case the value of the bonds may be as high as $75,000. Where, as is often the case, the only asset remaining in the deceased s name is a motor vehicle, s. 18 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 provides for the transfer of it without a grant, provided that: (1) a beneficiary of the will consents or all persons entitled upon an intestacy consent; and (2) the total value of the estate does not exceed $25,000. When neither of these options is practical or available, the Public Guardian and Trustee in its capacity as official administrator can be called upon to act as administrator of an estate as a last resort, provided that the necessary statutory conditions are met (see ss. 164 and 165 of the WESA). Until 2003, the official administrator had no choice but to take on the task, irrespective of the value of the estate or even when it was insolvent. However, amendments to the EAA that year (and carried forward in the WESA) give the Public Guardian and Trustee a discretion to act or not as administrator in any given case. As a result, there have been increased difficulties in winding up small estates. Unless a beneficiary or intestate heir, or a creditor, is willing to act as administrator, small estates may never be properly administered. 3. MINORS [ 6.33] a. General [ 6.34] Section 13 of the EAA provided specifically for the appointment of an administrator of an estate where the next of kin (or each of them, if more than one) was a minor. In that case, s. 13 authorized the court to grant administration to a person the court thinks fit during the minority of the next of kin. The WESA contains a similar but broader provision, being s See 6.37 for a discussion of s In a minors case, as described above, an order under s. 132 could limit the appointment of the applicant as administrator to the date on 6-24 JAN 2014

25 APPLICATIONS FOR ADMINISTRATION [ 6.35] which the minor (or any of them, if more than one) has attained the age of majority and applied for a grant of administration (see FP 42). Such a limitation would be noted on the initial grant, in Form P19, by including the optional clause that reads This grant is limited pursuant to an order dated [dd/mmm/yyyy] a copy of which is attached. b. Documents and Procedure [ 6.35] See 6.37 and 6.38 for a discussion of the procedure under WESA, s ADMINISTRATION IN SPECIAL CIRCUMSTANCES (WESA, SECTION 132) [ 6.36] a. General [ 6.37] Subsection 132(1) of the WESA provides that the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so. Subsection 132(2) of the WESA provides that an appointment made under s. 132(1) may be conditional or unconditional and may be made for general, special, or limited purposes. As indicated in 6.34, s. 132 might be used, for example, to have an administrator appointed for an estate where all the intestate successors are minors. Also, if there is a delay in the appointment of a general administrator and it is necessary to appoint someone to collect the assets and to protect the estate, the court may appoint an administrator (formerly known as an administrator ad colligenda bona) under s The court may give the administrator whatever powers the court deems necessary. These powers may include the power to renew a lease, to dispose of a business, to sell assets, and to expend money on the preservation of assets. This type of grant, although used infrequently, has been made when the persons entitled to a grant are not yet determined, are out of the country, or have refused to obtain a grant of administration. Such a grant may be made to any appropriate person, including a creditor or friend of the deceased, and it will generally be limited until a general administrator is appointed. In certain circumstances, only the basic fee (see 6.28) will be payable on the filing of such an application. JAN