Removal Of Executors – Probate Litigation
Probate litigation is not usually a term used by Canadian lawyers but for those potential beneficiaries or executors caught in a dispute about the fitness, or otherwise, of a named executor, removing an executor, appointing a trust company, disputing accounts and a whole host of other probate related matters it may be a phrase that comes to mind.
If the deceased left a valid will the person named in the will as executor may apply to the court for a grant of probate. The value of assets that will pass through the will (some types of assets may go directly to the named or designated beneficiaries) need to be estimated and declared as part of the application for probate.
What assets are subject to probate in BC?
Generally a grant of probate is required if the estate contains real estate which needs to be transferred to a beneficiary in accordance with the will (where the property was held solely in the deceased name or was held as tenant-in-common). Government bonds, stocks and assets of significant value ($10,000 – $15,000) held in financial institutions are also likely to require a grant of probate.
The grant of probate is essentially evidence, issued by the court, that the executor has the legal authority to deal these valuable assets. Some financial institutions may require a grant of probate as a matter of policy to protect itself and the asset in its care to ensure the individual does indeed have absolute authority to deal with the asset.
If the executor(s) named in the will are unable or unwilling to act then an individual, usually a family member, may apply for a grant of administration with will annexed (attached).
If there is no will (ie the deceased died intestate) someone may need to apply for a grant of administration without a will annexed.
If the court approves the application it issues a grant, authorizing the applicant to deal with the estate assets.
If the estate is very modest in value and it does not contain assets held by agencies and financial institutions it may be possible to administer the estate without a grant.
When can assets of the estate be distributed?
Section 155(1) of the Wills, Estate and Succession Act states that the personal representative must NOT distribute assets in the 210 days following the grant being issued EXCEPT with the consent of all beneficiaries and those who may benefit if there is an intestacy or partial intestacy, OR unless the court orders a distribution.
Be aware that even where there is a valid will, if a gift fails to reach its intended beneficiary for whatever reason there is a very real risk the gift may fall to be dealt with under section 46 of the Wills, Estate and Succession Act – this may mean the gift belongs to someone not even named in the will. If the representative distributes or otherwise disposes of assets within the 210 days they are leaving themselves personally liable for losses sustained by the beneficiary who was entitled to those assets.
What is the limitation period for challenging a will?
If a spouse or child of the deceased wishes to challenge the will the claim must be started with 180 days of the grant of probate. You will note that the 180 days deadline is designed to ensure the executor is notified of any claims against the estate before the expiration of the 210 day prohibition on distributing assets.
If you wish to consider challenging a will it is important that you take legal advice without delay. Call Angela Price-Stephens on 250 869 1172 for a free consultation.
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