Probate is the BC Supreme Court's approval of a Will's validity - but even a valid Will can create problems if it isn't drafted with care. Here's what every BC testator and executor needs to know.
Probate is the process by which the BC Supreme Court approves the validity of a Will. The Court only knows what it is told, and people often misunderstand what is needed for a smooth and uneventful estate administration when the Will is drafted. It is important to consider all possible scenarios when drafting - to reduce if not prevent probate problems entirely.
A Will can be found to be valid but there can still be significant problems: doubt about whether it is truly the Last Will and Testament, wording that is unclear about who the administrators or beneficiaries are, and situations where the net residue is not fully distributed after all debts are paid.
There are many tasks to be completed before the Executor's responsibilities and liabilities end - and none of them can begin until an estate administrator (executor) has been officially recognized by the Court, giving them the authority to deal with all estate creditors and asset holders (including banks). Too often Wills lack either a clear naming of an Executor, or there is no alternate named to replace the original Executor if they are unavailable.
The estate administration process normally takes a year or more. The estate administrator must file the deceased's last income tax return and obtain a clearance certificate from the Canada Revenue Agency before distributing the estate. The CRA is just one of the estate creditors who must all be paid before beneficiaries receive their inheritance - otherwise the Executor can be personally liable to creditors.
What Is Probate and Why Is It Required?
Probate is not just a formality. It is the BC Supreme Court's formal recognition that a Will is valid - that it was made by a competent person, properly signed and witnessed, and represents that person's true last wishes. Once probated, the Will has legal authority behind it. Banks, the BC Land Title Office, investment companies, and other asset holders will require a Grant of Probate (or Grant of Administration, if there is no Will) before releasing or transferring assets.
The Probate Rules under the Supreme Court Civil Rules and the Wills, Estates and Succession Act (WESA) set out the documentation and procedural steps required for a successful probate application. These include an inventory of assets (the "Inventory of Estate Assets"), affidavits from the executor and witnesses, a notice period for creditors and potential claimants, and payment of the provincial Probate Fee (calculated as a percentage of the estate value).
Common Probate Problems - And How They Are Created
Most probate problems are created at the Will drafting stage - long before the executor ever files a court application. Understanding the most common problems helps Will Makers draft documents that avoid them.
No named executor or no alternate: If the named executor has died, is incapacitated, or refuses to act, and no alternate is named in the Will, the court must appoint an administrator. This requires a separate court application, takes additional time, and may result in someone being appointed who would not have been the Will Maker's choice.
Ambiguous beneficiary identification: Naming a beneficiary as "my son John" is clear if you have one son named John. But "my nephew" in a large family with multiple nephews, or "my sister" if you have more than one sister, creates immediate ambiguity that requires legal interpretation - which means cost.
Gifts of specific property that is no longer owned: Leaving "my 2015 Honda Civic" to a beneficiary when you sold that car years ago creates a specific problem called "ademption" - the gift fails because the specific property no longer exists in the estate. The beneficiary receives nothing unless the Will includes a savings clause.
No residuary clause: Every Will should direct who receives "everything else" - the residue - after all specific gifts, debts, and taxes are paid. Without a residuary clause, any property not specifically gifted becomes intestate property, distributed according to WESA's default rules rather than the Will Maker's wishes.
Outdated beneficiary designations on registered assets: A Will cannot override a registered beneficiary designation on an RRSP, RRIF, TFSA, or life insurance policy. If you have designated your former spouse on your RRSP but your Will leaves everything to your children, the RRSP still goes to the former spouse - outside the Will entirely.
Conflicting documents: Having multiple Wills (for example, a Will made in 2004 and an unsigned draft from 2019), codicils of uncertain validity, or mutual Wills from a joint estate plan can all create disputes about which document represents the true last wishes.
BC's Wills, Estates and Succession Act (WESA): The Curative Provision
WESA s.58 gives BC courts a unique remedial power: even if a document does not meet all the formal requirements for a valid Will, the court can declare it effective as a Will if it is satisfied that the document represents the deceased's testamentary intentions. This has allowed courts to give effect to unsigned documents, documents signed without witnesses, and informal letters found after death.
However, relying on s.58 is expensive and uncertain. It requires a court application, legal argument, and evidence about the deceased's intentions. The far better approach is a properly drafted, properly signed Will that leaves no room for these disputes.
Reducing the Risk: What a Well-Drafted Will Looks Like
A professionally drafted Will prepared with attention to BC law will address each of these risks explicitly: naming primary and alternate executors; identifying beneficiaries with full legal names and relationships; including a comprehensive residuary clause; adding savings clauses for ademption; and including clear instructions for distribution if a named beneficiary predeceases the Will Maker.
Sea to Sky Law™ provides complete Will drafting, estate planning, and estate administration support across British Columbia. Andrew Liggett BA JD CD has decades of experience guiding executors, administrators, and beneficiaries through every stage of the probate process - from the initial application to the final distribution and tax clearance. Contact us today for a consultation.
Probate is the BC Supreme Court process that formally validates a will and authorizes the executor to deal with the estate. Problems arise when the will is unclear, the executor is in conflict with beneficiaries, assets are not properly identified, or the estate includes complex assets like businesses or foreign property.
Yes. A court may remove an executor who is failing to administer the estate, acting in conflict of interest, is incapacitated, or has committed misconduct. A beneficiary or co-executor can bring an application to remove and replace the executor.
Simple estates with no disputes can be probated in 3–6 months. Complex estates with disputed wills, missing beneficiaries, business interests, or litigation can take 2–5 years.
If the estate is insolvent, beneficiaries receive nothing. The executor must pay creditors in a prescribed order of priority before any distribution to beneficiaries. An insolvent estate can create liability for an executor who distributes assets before paying all debts.