This information is provided as a public service by the Public Guardian and Trustee of British Columbia, on the understanding that the Public Guardian and Trustee of British Columbia is not providing legal or other professional advice.
ROLE OF THE PUBLIC GUARDIAN AND TRUSTEE
What does Estate and Personal Trust Services at the Public Guardian and Trustee do?
The Public Guardian and Trustee, as Official Administrator for BC, administers an estate when the Executor, heir, beneficiary or other eligible person is not able or willing to do so.
The Public Guardian and Trustee may agree to be appointed executor in appropriate circumstances.
The Public Guardian & Trustee does not assist in resolving disputes respecting the administration of estates by private parties nor do we provide information or advice on how to administer an estate.
How much does the Public Guardian and Trustee charge to administer an estate?
The Public Guardian and Trustee charges fees and commissions set out in the Public Guardian and Trustee Fees Regulation. They are based on the value of the estate and the amount of income generated by the estate assets.
Except where we are named executor in a Will, we charge the following fees to administer a deceased estate:
If the Public Guardian and Trustee is named executor in a Will, we charge the following fees:
I don't want my (brother) to administer (mom's) estate. How can I stop him? Will the Public Guardian and Trustee take over?
An heir wishing to administer an estate will need the consent of all the other heirs in order to obtain Letters of Administration from the Court. If the heirs cannot agree who will administer, an application to the Court may be necessary. The Court will then decide who should be appointed administrator. You should seek legal advice in such a situation.
If you are considering asking the Public Guardian and Trustee to administer the estate, we will consider such a request and may give our consent to act. The court cannot appoint the Public Guardian and Trustee as administrator without prior written consent.
The deceased had young children. How are their rights protected?
Parents of children under the age of 19 should take care to appoint a guardian of their children in their Wills in the event there is no surviving parent with custody of the children. Parents should ensure that the named guardian is willing to take on this important responsibility and consider the costs of caring for the children.
The surviving parent with legal custody, or the Guardian appointed by the Will or the Court is responsible for protecting the child's rights. If a Will does not appoint a guardian for a child under nineteen and there is no surviving parent with legal custody of the child, the Public Guardian and Trustee becomes the guardian of the estate of the child and protects the child's legal and financial rights. The Director, Child and Family Development of the Ministry of Children and Family Development becomes the guardian of the person of the child and looks after health, education and upbringing. A relative or other appropriate person may apply to court for Guardianship or to adopt the child.
Section 112 of the Estate Administration Act requires that the executor or administrator notify the Public Guardian and Trustee whenever a child is or may be an heir or beneficiary to ensure that the child's rights are protected. More information is available from Public Guardian and Trustee Child and Youth Services.
For information about a specific child's interest in a specific estate, contact our Child and Youth Services directly.
One of the heirs (or beneficiaries) is a mentally ‘incapable' adult. Does the Public Guardian and Trustee get involved?
Section 112 of the Estate Administration Act requires the executor or administrator to notify the Public Guardian and Trustee when a mentally disabled person is or may be a beneficiary under a Will; entitled on an intestacy or partial intestacy, or have a Wills Variation Act claim. Section 112 Notices are reviewed to ensure that the person's rights are protected. The notice will normally consist of copies of the documents to be submitted to the Court, and must be accompanied by the fee in the Public Guardian and Trustee Fees Regulation. Information is available from Public Guardian and Trustee Services to Adults.
For information about a specific incapable adult's interest in a specific estate, contact our Services to Adults directly.
My widowed mother recently died in BC. My siblings and I all live in other provinces and countries so our cousin in Vancouver offered to administer mom's estate. When he applied for Letters of Administration he was informed he'd need the written agreement of the Public Guardian and Trustee. What's this all about?
Section 40 of the Estate Administration Act provides that when someone dies in BC, the Official Administrator (Public Guardian and Trustee) may apply for Letters of Administration if there are no heirs in BC willing and able to do so. Section 41 (2) gives the Court authority to appoint anyone as administrator provided they have the consents of the heirs and the Official Administrator. In effect the Court wants the Official Administrator to give up his ‘prior right' before appointing a non-heir as administrator.
Does the Public Guardian and Trustee help people find relatives or research family history?
No. The Public Guardian and Trustee only gathers the genealogical information necessary to correctly distribute the estates being administered by the Public Guardian and Trustee. This information is protected by the Freedom of Information and Protection of Privacy Act and cannot be released except under specific circumstances.
I heard that I could ask the PGT to be the executor. How does this work?
Legislation provides that the Public Guardian and Trustee may be appointed executor in a Will. Most people appoint their spouse, an adult child or trusted friend. Some people prefer a professional administrator such as a trust company or the Public Guardian and Trustee. If you are considering appointing the Public Guardian and Trustee as executor, please contact Estate and Personal Trust Services to discuss whether the Public Guardian and Trustee is an appropriate choice and will agree to act as executor of your Will, at email@example.com .
ADMINISTERING AN ESTATE
What's involved in administering an estate?
Briefly, the administration involves making funeral arrangements, identifying, securing and dealing with assets, obtaining Letters Probate or Letters of Administration from the Court, filing tax returns, identifying and paying valid debts and distributing the balance of the estate to the rightful heirs and/or beneficiaries. Complete and accurate records must be kept and produced if requested by heirs or beneficiaries. The administration of an estate often takes a year or longer to complete.
What are the taxes on estates? Are there death taxes in BC?
There are no estate, succession, inheritance or death taxes in BC. However, estates in BC are subject to the following probate fees (charged on gross assets) as of July 2005:
In addition, a filing fee of $200 is required for estates which have a gross asset value greater than $25,000.
Assets which pass outside the estate, such as those held in joint tenancy, (with right of survivorship), or to named beneficiaries (such as life insurance or RRSPs) are not subject to probate fees. Assets outside of BC may be subject to probate fees or taxes in that jurisdiction.
While there are no estate taxes, income taxes (including capital gains taxes) may be payable as a result of death. You should consult Canada Revenue Agency (CRA) or an accountant or lawyer respecting income tax consequences of the death or if there are non-resident beneficiaries or heirs.
What is the difference between an Executor and an Administrator? Between beneficiaries and heirs?
An Executor is named in a Will as the person who is to Probate the Will (apply to the Court for Letters Probate) and administer the estate of a deceased person in accordance with the deceased's wishes as set forth in the Will. If there is no Will, a person can apply to the Court for Letters of Administration and be appointed Administrator of the estate. The Administrator administers the estate in accordance with the provisions of the Estate Administration Act . Beneficiaries inherit by being named in a Will. Heirs are the ‘next-of-kin' who inherit according to law when there is no Will.
Who administers when there is no Will?
The Estate Administration Act establishes the priority of relatives' rights to inherit and thus to administer the estate. Spouses and common law spouses (including common law spouses of the same gender) have first priority, followed by children, grandchildren (or guardians on their behalves), and parents. Siblings and children of predeceased siblings are next, followed by nieces and nephews. Any one of the heirs to an estate can administer the estate with the consent of all the other heirs. The Public Guardian and Trustee may also be able to act, with the consent of heirs; if no one is wiling or able to undertake this responsibility.
Who is considered a spouse for purposes of administering an estate?
In BC a spouse may be either a person to whom the Deceased was united by marriage providing the spouse has not lived separate and apart from the Deceased for more than 1 year immediately before the Deceased's death or a common-law spouse. As of November 1, 2000, the Estate Administration Act defines a common law spouse as a person who has lived with the Deceased, including a person of the same gender, in a marriage-like relationship, for at least 2 years immediately prior to the Deceased's death.
With the expanded definition of spouse, it is possible that more than one person may fit the definition of spouse. Should this create a conflict as to who has the right to make funeral arrangements, or to administer or inherit from an estate, it will likely be necessary to seek legal advice.
FINDING THE HEIRS OF AN ESTATE
How does the Public Guardian and Trustee find the heirs of the estates they administer?
The Public Guardian and Trustee of British Columbia makes extensive efforts to find heirs when it administers an estate. Sometimes the next-of -kin can be identified by reviewing the deceased's personal papers. Sometimes they are identified by others, such as the deceased's caregivers, associates or friends. In these cases, it is usually a fairly simple matter of determining which of the next-of-kin are entitled by law to inherit. We then make contact and receive proof of their identity and their relationship to the deceased.
In many cases, however, it is very difficult to identify and locate next-of-kin. The Public Guardian and Trustee will exhaust normal channels in seeking to determine the whereabouts of next-of-kin, and may retain professional genealogists to trace the deceased's family tree. These experts use a variety of techniques including searching birth, marriage and death notices, other records, as well as speaking to persons who may have information as to the next-of-kin in both Canada and other countries.
What if I am approached by a person who agrees to give me information about an inheritance in exchange for a percentage of the estate?
There are individuals - sometimes referred to as "heir tracers" - who, as a business endeavour, track down people who are not aware of their entitlement to an inheritance. Heir tracers often require a very substantial "finders fee" before giving a person the information they need to access the inheritance, or acting on their behalf in order to collect the inheritance. It is not required that you have an "heir tracer" to assist you. We will endeavour to locate all rightful heirs to estates we administer, and pay the fees for professional assistance directly from the estate.
If you suspect that you may have an interest in an estate that the office is administering but are not sure, contact us. Provide us with the last name of the deceased person and your relationship to him or her. Our office will try to assist you in determining whether you may be a potential heir. We do not charge for this information, and if you are found to be an heir, our staff will explain all the paperwork requirements and guide you through the necessary steps to obtain your inheritance.
How does the Public Guardian and Trustee know whether a person claiming to be the lawful heir to an estate has a legitimate claim?
The Public Guardian and Trustee must be reasonably certain that there is no one who is closer in relationship than the person(s) claiming to be the heir(s), and that the documentary proof of the heir's identity is sufficient to ensure they are who they claim to be. We do this by carefully reviewing the deceased person's family tree, making sure that all the connections between the ancestors are substantiated and that proof of identity is provided. The material is reviewed and verified by senior staff members before the estate is distributed.
SOMETHING ABOUT WILLS
I'm named as Executor in a Will but don't want to take on this responsibility. Can I get out of it?
If you have not started to administer you may ‘renounce', and allow beneficiaries or family members to decide who should apply for ‘Letters of Administration with Will Annexed'. If you have already started to administer, you could be compelled by the Court to continue. In such a situation you may wish to seek legal advice.
I believe that there is a Will, but I don't know where it is. What shall I do?
The deceased wrote out his wishes but they weren't witnessed. Is a video Will valid?
Neither the deceased's unwitnessed written wishes nor a video Will is valid if made in BC. In BC, a Will must be in writing, signed and witnessed by at least two people present at the same time the testator signs the Will. The witnesses must both be in the room at the time the Will is signed.
Exceptions exist only for armed forces personnel and merchant mariners on active service. If the Will was made outside BC, you should consult a lawyer, as different rules may apply.
Who gets the estate when there is no Will?
If there is no Will, the Estate Administration Act provides that the spouse, including a common law spouse (including same gender), and children will inherit the estate. If there is no spouse, children or grandchildren, then parents inherit, and if they pre-deceased, siblings and children of pre-deceased siblings inherit. If there are no living siblings, nieces or nephews come next, and if there are none, the estate is divided equally among those next and equally close by bloodline. Adopted and out-of-wedlock children and relatives of half blood have the same status as other relatives of the same degree of kinship. You should seek legal advice if you are in doubt.
I believe I am a beneficiary. How can I find out what is in the Will?
There is no formal ‘reading of the Will' in BC. Section 112 of the Estate Administration Act requires the executor or administrator to give notice of his or her intention to apply for probate and attach a copy of the Will. Notice must be given to beneficiaries named in the Will, those who would inherit if there were an intestacy, those entitled to apply under the Wills Variation Act , and common-law (including same gender) and separated spouses. After probate, the Will and other probate documents are public; copies may be obtained from the Court.
If you want to know whether a particular estate has been administered in British Columbia and where it was administered, contact the Supreme Court Probate Registry in Victoria at 250.356.9485.
How can I get the executor to act?
Begin by writing the executor setting out your concerns. Keep a copy of your letter to show you have taken this step. If you are a beneficiary of a Will but have not received written notice that the executor will be applying to probate the Will, you can take action that will require the executor to respond to the Court within 14 days. This procedure is called ‘citing' the executor. If the executor indicates that he or she will not be accepting the executorship, you may be able to apply to the Court to be appointed administrator of the estate. Further information may be obtained from the probate division of your local Supreme Court offices. BC Court Services offices are listed in the blue pages of telephone directories. You may wish to seek legal advice.
What can I do if the executor or administrator is wrongly administering the estate?
First, if you are an heir or beneficiary, you should write to the executor or administrator and ask for a complete accounting of his involvement in the estate. An executor or administrator is required to pass his accounts in Court within two years, or as early as one year from the date of his appointment, if an heir or beneficiary serves notice on him to do so. Everyone with a financial interest in the estate is entitled to be present and raise his or her concerns at the Court hearing. You may be required to pay a portion of the legal costs associated with this procedure.
If the executor or administrator refuses to provide an accounting or to pass his accounts, you may apply to the Court for an Order requiring him to do so.
If after reviewing the accounts it appears that the executor or administrator is acting improperly, it may be necessary to apply to the Court for an Order removing him, and appointing a new administrator, or a ‘judicial trustee'. You will need a lawyer to assist you with this.
How do I find out who is administering the estate?
People who are creditors or who believe they will inherit from a deceased person will need to deal with the executor (if there is a will) or the administrator otherwise. Determining who this is can be difficult, particularly if you have had no contact with the family and friends of the person who died. There are, however, a number of inquiries you can make. If the person died in BC, and you know where and when the person died, you may be able to trace this information through the person's obituary notice, funeral provider, bank, family, colleagues or neighbors. If the estate has assets that require Court authority to deal with, the executor or administrator will need to apply to the Supreme Court for letters probate or of administration. It may be some time after the death that they actually do so (often a year or so) but the application will be recorded in the local Court where the application was made, and in the Probate Section of the Supreme Court Registry in Victoria (phone 250.356.9485). You will need to provide the full name, place and date of death of the deceased person in order to access this information. Many estates in BC are informally administered by family members and therefore no Court or other record exists of who actually carries out this role.
ARRANGING AND PAYING FOR THE FUNERAL
Who has the right to make funeral arrangements?
This is covered in Section 5(1) of the Cremation, Interment and Funeral Services Act. The personal representative named in a Will has the first priority, followed by the deceased person's spouse (includes legally married or a person who has lived in a marriage-live relationship, including a marriage-like relationship between persons of the same gender, with the deceased for a period of two years immediately preceding death). Next are adult children, adult grandchildren, parents, adult siblings, adult nieces and nephews, then other closest next-of- kin. Among persons of the same degree of kinship, priority begins with the eldest and descends by age.
I can't afford a funeral. What financial help is available?
The cost of funerals and related services varies greatly. Be aware of the costs that you are contracting and signing for. You are responsible for the debt if you sign the agreement. Funeral Directors can assist you in making decisions based on the budget and circumstances. If you are the next-of-kin or the administrator of the estate you should investigate the following:
The deceased person's bank account. Reasonable funeral expenses are a first charge against the estate. If the deceased has sufficient funds, the bank will usually pay the funeral home directly from the deceased's account. Speak to the bank manager to confirm that you will be forwarding the funeral account for payment. The bank will draw a cheque on the account of the deceased and send it to the funeral home;
An RRSP or Life Insurance policy may name a beneficiary who may choose to use these funds to pay for the funeral;
Canada Pension Plan may provide a death benefit if the deceased worked and paid into the Plan. Funeral homes have the application forms. If the deceased was eligible, you may pay the funeral home, or arrange credit until receipt of the death benefit. This benefit might not cover the entire funeral cost;
Workers Compensation Board death benefits may be available if the death resulted from a workplace accident or a criminal act;
ICBC benefits may be available if death resulted from a motor vehicle accident.
The deceased's employer, labor union, trade association or club may have a pension or other benefit plan with provisions for a death benefit or funeral expenses;
The Ministry of Human Resources will provide a respectful funeral service and burial or cremation if the deceased was indigent and funds are not available from the family or any other source. You should contact Enquiry BC at 1.800.663.7867 who will direct you to the local MHR office where you can ask for "Indigent Burial Services".
Are there special entitlements for a veteran?
If a veteran dies without funds, the Last Post Fund will provide a military funeral and grave marker in a nearby cemetery. If the veteran was a Royal Canadian Legion member, fellow members will send an honor guard to the funeral upon request. Tel 604.572.3242 or 1.800.268.0248, fax 604.572.3302;
Veterans Affairs Canada may provide a Survivors' Pension for the deceased's spouse and dependent family. Benefits are based on assets at the time of death and whether the deceased was on a disability pension. Tel:1.866.522.2122.
DEALING WITH THE DECEASED'S POSSESSIONS
Everything is in joint names. Does the estate need to be probated or administered?
An estate need not be ‘probated' or ‘administered' when all assets (such as bank accounts or real estate) are jointly owned with another person, or when RRSPs, pensions and insurance policies have a named beneficiary. These assets generally do not form part of the estate and will usually transfer directly to the survivor or named beneficiary. Check with a lawyer or the bank, insurance company, and Land Title Office about documentation needed to claim the insurance benefit or register the transfer in title to the surviving joint owner(s).
The deceased's only assets are a couple of cheques of around $500. What do I do?
Most banks and credit unions will release funds to the executor or next-of-kin of an estate under $10,000. If the deceased had an account at the date of death, the bank may agree to deposit the cheques to the account, then release the funds on an Indemnity Agreement (an agreement to repay the bank if a future claim on the estate is made against it). The executor under the Will may complete the Agreement, or if there is no Will, the next-of-kin who stand to inherit may do so. Banks usually release funds for payment of funeral costs without requiring indemnity. Contact the financial institution to find out what they require.
I need to sell the deceased's car – it is all he owned. How do I do this?
There are two issues here: who has the legal right to dispose of the car and the ownership transfer requirements of the Motor Vehicle Act . ICBC agents will explain the transfer requirements and advise whom they can deal with on behalf of the deceased owner.
The deceased owned some pets and no one is taking care of them. What should be done?
Contact a family member or the local SPCA. They may have other suggestions and contacts.
How can I stop people stealing from the deceased's residence?
As the executor or administrator of the estate, you are responsible to protect the assets of the estate. If the property of the deceased is vulnerable you should:
How do I deal with assets of the deceased located outside British Columbia?
You should contact the authorities of the jurisdiction where the assets are located to find out what they require in order to allow you to deal with assets outside of BC or contact a lawyer.
DEALING WITH CREDITORS AND LANDLORDS
It appears that the deceased owed substantial amounts of money on credit cards and the issuers are pressing the relatives to pay them off. Is there any obligation for them to do so?
Only the estate of the deceased person is liable for the deceased's debts. It may take considerable time to determine the assets and debts of the estate, and advertise for creditors before paying off any debts. Debts are paid in a priority specified in Section 101 of the Estate Administration Act . If there are inadequate funds in the estate to satisfy all debts, some may not be paid, or may be paid on a pro-rata basis. There is no obligation for anyone else to pay the debts and no obligation for the executor or administrator of the estate to do so before Court authority is granted and all estate affairs are in order.
The deceased owed me money. Is there anything I can do to get it back?
You should make a claim in writing to the person administering the estate providing verification of the debt. After the estate assets have been evaluated, the Executor or Administrator will advise whether your claim has been accepted or not. If your claim is refused, you must be notified in writing, after which you have 6 months in which to commence legal proceedings. The administrator may be personally liable if he or she distributes the estate before the validity of your claim has been decided.
The landlord insists that the deceased's belongings be removed immediately. What shall I tell him?
The deceased's belongings are assets of the deceased's estate and the landlord should be advised to find out who is authorized to administer the estate and can undertake the responsibility of removing the effects. Landlord and tenants' rights and obligations are covered in the Residential Tenancy Act administered by the Residential Tenancy Office. The landlord should refer to this legislation to determine under what circumstances he may deal with the deceased's belongings himself.
Residential Tenancy Landlord-Tenant Information Line: 604.660.3456
RIGHTS AND CLAIMS TO THE ESTATE
What are the rights of a separated spouse?
Generally, a separated spouse is entitled to whatever is bequeathed in a valid Will, provided there is no separation agreement in which the separated spouse gives up the right to inherit. If there is no Will, and the spouses have been separated for more than one year with the intention of living separately and apart, and without intention to get back together, the survivor has no automatic right to inherit. He or she may bring a claim against the estate within 6 months of authority being granted to the Administrator. The advice of a lawyer is recommended in such situations.
What are the rights of a common-law spouse?
As of July 28, 2000, a person who was living with the deceased at the time of death and was cohabiting with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, has the same right to make funeral arrangements as a legally married spouse. There is no specified period of cohabitation required.
Effective November 1, 2000, under the Estate Administration Act , a common law spouse includes a same sex common law spouse when the parties have lived and cohabited in a marriage-like relationship for a period of at least two years immediately before the other person's death. A common law spouse has the same right as a legally married spouse to administer the estate and to inherit under Part 10 of the Estate Administration Act .
Over a period of time I helped the deceased by running errands, taking care of his house and making meals when he was ill. I incurred out of pocket expenses while doing so. He always said he'd generously reward me before he died or in his Will, but it now appears I'll get nothing. Can I make a claim against the estate?
You may want to check with the executor of the estate to see if the deceased did make provision for you in his Will. If you are considering making a claim against the estate you should consult a lawyer.
OTHER FREQUENTLY ASKED QUESTIONS
My (mother's) Will leaves her estate to the care facility where she has been living for her last few years. Is this allowed?
The Community Care and Assisted Living Act requires that the Public Guardian and Trustee consent in writing to bequests where a deceased person's care facility or its employees are beneficiaries in his or her Will. This ensures that the bequest is appropriate to the circumstances when the Will was executed.
Anyone contemplating a bequest to a care facility or its employees where he or she is or has been a client should seek legal advice in making a Will so as to ensure the bequest can be carried out.
Information on how to deal with a situation where a caretaker or care facility is a beneficiary under a Will is available from a Public Guardian and Trustee Solicitor.
An elderly friend of mine has granted Powers of Attorney to a couple of friends. Do the Powers of Attorney become invalid when he becomes incapable or dies?
In BC, the authority granted under a Power of Attorney terminates with the death of the donor (the person who gave the Power of Attorney to another). It should also be noted that the authority granted under a Power of Attorney terminates if the donor becomes incapable, unless it specifically states that the authority is to continue despite any mental infirmity of the donor, and is signed by the donor and a witness.
My brother disappeared a few weeks ago. He went fishing by himself and never came back. I'm pretty sure he must be dead. He has bills that need to be paid. His car is at my house and I know he has money in the bank. The police say they've done everything they can. What should I do?
If there is sufficient evidence that a person is dead, the court may issue a presumption of death order. Otherwise, if a person has been missing for at least 3 months and has not been heard from by relatives or others that are usually in touch with him, the Court may appoint the Official Administrator (the Public Guardian and Trustee of BC) or another suitable person as curator of the missing person's property. You should seek legal advice as to whether the Court might issue a presumption of death order, or appoint a curator to take care of your brother's property. Alternatively, you may ask the Public Guardian and Trustee to act as curator.
WHERE TO GET HELP
I don't have a lawyer. Where can I get help for Wills and estate administration matters?
Some suggestions are:
NOTE : The information provided in these FREQUENTLY ASKED QUESTIONS is intended to provide general information with respect to the questions most frequently asked with respect to estate administration. If you have a specific question about an estate that you are administering or involved in, you should contact a lawyer or one of the resources referred at the beginning of this publication.