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The death of a loved one is painful, and now you are faced with the difficult task of dealing with the affairs of your loved one after they have passed away. If you have been appointed as an executor in a will, or you want to administer an estate when there is no will, there are many rules and procedures that you need to know. Our Kamloops probate and estate lawyers are here to help you navigate this process to make your job as easy and straightforward as possible.
A properly drafted Will appoints a trustee, known as an executor, who is responsible for administering the estate. The executor is responsible for determining and dealing with the property, money, personal items, investments, and debts of the estate. When appropriate, the executor can make an application to the BC Supreme Court for a Grant of Probate. The Grant of Probate gives the executor the legal ability to manage the estate assets in accordance with the directions set out in the Will. Once the executor has dealt with the assets and debts of the estate, they will distribute the remaining assets according to the wishes of the Will to the named beneficiaries.
When someone dies and does not have a Will, it creates a situation known as an intestacy. When there is an intestacy, the rules for the administration of the estate are established by the Wills, Estates and Succession Act, which is often referred to as WESA. WESA establishes the priority of who may apply for a Grant of Administration of the intestate estate as follows (in order):
1. the spouse of the deceased person or a person nominated by the spouse;
2. a child of the deceased after obtaining the consent of the majority of the children of the deceased person;
3. a person nominated by the majority of the deceased person's children;
4. a child of the deceased not having consent of the majority of the children of the deceased person;
5. other relatives of the deceased person, with consent of other relatives entitled to a share of the estate;
6. other relatives of the deceased person, without consent of other relatives entitled to a share of the estate; and
7. any other person that the BC Supreme Court considers appropriate.
WESA establishes how the assets of the estate will be distributed after debts have been paid. A priority interest for the spouse of the deceased person is established which gives the spouse:
1. any household furnishings;
2. the right to acquire the spousal home, if it was not jointly owned; and
3. the first $300,000 of the estate when any children of the deceased are also the children of the spouse, or the first $150,000 of the estate in blended families where the deceased person had children from another relationship.
If the deceased person did not have a spouse, then the estate will be divided between the deceased's children. If there are no children, then the estate is given to the deceased's parents. Determining who should receive the estate assets can be complicated and can be a source of liability for an administrator who does not know what he or she is doing.
The administration of an estate is often a significant commitment and takes time to complete. If you have been appointed as an executor in a Will you should carefully consider whether you are willing to take on this commitment. The administration of an estate often takes a year or longer to complete, and WESA requires that the executor not distribute the estate for 210 days after the grant of probate or administration is granted by the court, except in certain circumstances.
Administering an estate also requires that the executor or administrator keep detailed financial records showing all amounts spent on and received by the estate. If these records are not kept early in the administration of an estate, it can become a significant source of frustration for the executor or administrator later.
Each estate is different, and there are many other rules not mentioned that can affect the way an estate is handled. Obtaining legal advice early can save you time, stress and money. Our estate lawyers Denise Kranz, Ryan Scorgie, and Courtney AuBuchon are here to help you navigate this difficult process.