The Sound of Music is one of my movie favourites. Up there with The Princess Bride. One of the scenes has Maria teaching the children how to sing with a song that opens: 鈥淟et鈥檚 start at the very beginning鈥�.
I was going to start this column with those opening words, but realized that there might be a generation or two of folks who have never seen the movie, which was released in 1965. Though unlikely as all heck that any of those young folks would be reading this column!
This is the first of a series where I hope to demystify the various steps of applying for an estate grant.
An estate grant is a court order giving authority to one or more folks (executor(s) or administrator(s)) to deal with the deceased鈥檚 assets. It鈥檚 the equivalent of a power of attorney, but after death.
Most people refer to it as 鈥減robate鈥�, though depending on whether there鈥檚 a will or whether a named executor is making the application, it might technically be called a grant of probate or a grant of administration.
The 鈥渧ery beginning鈥� of the process is taking all reasonable steps to search for deceased鈥檚 last will.
It鈥檚 an important first step, particularly given British Columbia law that says that any document, physical or even electronic, can be 鈥渃ured鈥� to be a deceased鈥檚 last will if the court is satisfied that it sets out the deceased intentions for how their estate is to be dealt with.
That鈥檚 even if it鈥檚 not labeled 鈥渨ill鈥�, and doesn鈥檛 have anything of a signature, let alone witnesses.
I鈥檝e written specifically about the 鈥渃uring鈥� of technically invalid wills some months ago. If you have trouble finding my column on the subject, let me know and I鈥檒l send you the link.
One of the documents you will be submitting to the court registry when applying for an estate grant will be an affidavit where you swear or affirm that a diligent search has been conducted. This paragraph is copy/pasted from one version of such an affidavit:
鈥淚 am satisfied that a diligent search for a testamentary document of the deceased has been made in each place that could reasonably be considered to be a place where a testamentary document may be found, including, without limitation, in all places, both physical and electronic, where the deceased usually kept important documents and that no testamentary document that is dated later than the date of the will has been found.鈥�
What to do if you find a document that鈥檚 not a properly signed or witnessed will, but sets out the deceased鈥檚 wishes? Give me a call and I鈥檒l try to help you out.
One important, and mandatory, way to look for the deceased鈥檚 last will is by doing a search of the Wills Registry, which is a Vital Statistics registry where a notice can be filed giving the whereabouts of a person鈥檚 will. I鈥檝e written specifically about that registry some months ago as well if you are unfamiliar with it.
The results of the search are not conclusive, because there鈥檚 no requirement to file notice of your will with the registry. And you might know for certain that the will your parent handed to you the week before they died is their last will, but it is mandatory to conduct that search and file the results with the court registry, in duplicate.
How do you search the Wills Registry? Easy peasy. Use 鈥淏C Wills Registry鈥� as your browser search and you鈥檒l be taken to a page with easy-to-follow instructions.
Hot tip: pay the $33.00 rush fee, which will give you a result within 3-5 days instead of 3 weeks.
When submitting your search to the Wills Registry, you will need to fill out a form that includes the deceased鈥檚 date and city of birth and of death, the deceased鈥檚 full legal name and any other names the deceased might have gone by, i.e. any aliases.
Look for aliases anywhere the deceased has assets, i.e. on bank statements, vehicle registrations, land title registrations, investment accounts, mobile home registrations, etc.
The deceased might have dropped one of their middle names, used an initial, used a shortened version of their name or changed their name through marriage or divorce.
Odd as it might seem, the deceased might even have used an alias on their own will! That happens more often than you might think. Look not only for the typed version of their name but also how they signed the will.
Each alias adds another $5 to the cost of the search, but it鈥檚 worth it. Failure to include an alias might delay your application if the court registry makes you conduct another search or make your successful estate grant useless to transfer an asset that鈥檚 in the name of an alias.
After all of that searching, it might turn out that the deceased doesn鈥檛 have any will at all. No worries. The process of applying for an estate grant is very similar with or without a will. Tune in next week for the next steps in that process.
Back to The Sound of Music: if you鈥檝e not seen it, make a massive batch of stove-top popcorn and settle in for a two hour and 52 minute amazing experience. If you don鈥檛 know how to make stove-top popcorn, you deprived soul, reach out to me on Facebook and I鈥檒l link you to my video tutorial!
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul鈥檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul鈥檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
