Working With the Probate Registry

Transcription

1 WILLS AND ESTATES FUNDAMENTALS FOR LEGAL SUPPORT STAFF 2008 PAPER 9.1 Working With the Probate Registry These materials were prepared by Jim Andrews, Supervisor, Probate & Bankruptcy Registry, Supreme Court of BC, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, February Jim Andrews

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3 9.1.1 WORKING WITH THE PROBATE REGISTRY I. Overview of Registry... 1 A. Introduction Registry vs. Registrar... 1 B. Major Responsibilities... 2 C. Rules and Acts... 2 D. Flow Charts... 2 II. Grant of Probate Flow Chart...3 III. Grant of Letters Administration Flow Chart...4 IV. Getting Your Applications Right...5 A. Common Problems Will Search (Wills Act, Section 61(31)) Rush Applications Section 20 Applications Unstapling of the Will Affidavit Sworn by Notaries Outside of BC for Use in BC Ordering Office Copies Documents referred to in a Will... 5 B. Administration Applications Clearing Off Consents Public Trustee Recommendations... 6 C. Speaking to Applications Non-Contentious Applications Caveats... 6 V. Electronic Search and Court Services...7 VI. Registry Checklists...8 A. Probate... 8 B. Administration C. Administration with Will Annexed A. Introduction Registry vs. Registrar I. Overview of Registry The registrar function is a judicial one, for matters such as confirming the executor, confirming that the will complies with the statutes, issuing citations, issuing caveats, and so on. A decision by a registrar is appealable. The registry aspect is the processing and filing of documents, copying requests, and such like. The registry does not give legal advice, only procedural advice.

4 B. Major Responsibilities The probate registry s role is to: (1) Screen applications in accordance with legislation, policy and procedures, practice directives and Rules of Court for: (b) (c) Grants of Probate; Grants of Letters of Administration; Grants of Letters of Administration with Will Annexed; and (d) Resealing of Grants or Ancillary Grants. (2) Assess Court filing fees payable under items 7 and 20, Schedule 1, Appendix C, Rules of Court. (3) Receive and record Caveats and Citations pursuant to the Rules of Court. (4) Prepare and issue Grants for estate applications that have been approved. (5) Refer for hearing in chambers all estate applications that the Registrar is unable or unwilling to approve and process. (6) Conduct searches for issued Grants of representation. (7) Ensure that all procedures required by the Court before a Grant of representation is issued are followed. (8) Prepare and issue Grants once applications have been checked and approved. C. Rules and Acts The main Rules and Acts that are referred to are: (1) Supreme Court Rule 61 AND 62. (2) Wills Act. (3) Estate Administration Act. (4) Probate Recognition Act. (5) Survivorship and Presumption of Death Act. D. Flow Charts These charts show how your applications under Rule 61 are processed. Grant of Probate. Grant of Letters of Administration.

5 9.1.3 II. Grant of Probate Flow Chart

6 9.1.4 III. Grant of Letters Administration Flow Chart

7 9.1.5 A. Common Problems IV. Getting Your Applications Right The registrar uses a checklist when reviewing grant applications. The following is a list of the most common problems encountered and some ways to avoid them. This list has been edited in recognition of the fact that this is material for a fundamentals course. 1. Will Search (Wills Act, Section 61(31)) (b) (c) 2. Rush Applications (b) Style of proceedings must contain name or names in Will and all other name versions. Ensure that you have used the name shown in Part 1 of Title of Land, otherwise Land Titles will not transfer the property. Names should include initials (e.g., William J. Smith or also William Smith). If there is a general urgency to obtain a grant you may wish to check with the Registry regarding current times for a grant to be issued. If there is a reason you require this grant on an expedited basis you need to write a letter to the registrar explaining the reason for urgency. 3. Section 20 Applications Section 20 was amended to $25,000. This section only applies to administration applications. 4. Unstapling of the Will Rule 61(19) is clear what is required under these circumstances. 5. Affidavit Sworn by Notaries Outside of BC for Use in BC Ensure they are sworn under seal. 6. Ordering Office Copies The registry no longer provides office copies. Ask for a certified copy. 7. Documents referred to in a Will Ensure that you include any such documents or explain why you are unable to do so. Don t ignore these references. If the documents are subject to probate, ensure they have been mailed as required by Section 112 and referred to in the 112 affidavit. (b) Refer to Rule 61(17).

8 9.1.6 B. Administration Applications 1. Clearing Off 2. Consents Ensure in paragraph 3 of your affidavit of administrator that you follow the form and clear off all persons who are entitled, not just those who survived. If you show a debt as unpaid, you will require the consent of the unpaid creditor, eg. Canada Revenue Agency amount unknown. This seems to be a problem. 3. Public Trustee Recommendations (b) Grants of Administration cannot be issued until the court receives the recommendations of the Office of the Public Guardian and Trustee. You need to follow up to ensure the recommendations come in as soon as possible. C. Speaking to Applications Applications are spoken to when they are under Rule 62, contentious applications, and under Rule 61(5) and (6) whenever the Registrar rejects your application, as well as all applications for proof in solemn form. The following are some examples where applications may have to be spoken to: 1. Non-Contentious Applications 2. Caveats Non-contentious applications filed under Rule 61 (5) and (6). (5) The registrar may approve the application and mark the documents as approved, but if the registrar refuses to approve the application the registrar shall note on the documents his or her reasons for refusing approval. (6) The applicant may set down the application for hearing by the court at any time after the registrar has approved or refused to approve it. (b) When it is an administration application and not all the consents are available. (c) When an applicant wishes a grant without bond and someone requests a bond. (d) Probating a copy of a will. (e) Proof in solemn form, Rule 61 (11), (12) and (13). (11) Where the circumstances appear to justify the direction, the court may require that proof of the will be made in solemn form. (12) An application for proof of a will in solemn form shall be by petition in Form 3, and Rule 10 applies. (13) On application for proof of a will in solemn form, copies of the petition shall be served on all persons having an interest in upholding or contesting the validity of the will, and the petition shall contain a warning to those persons that they will be bound by the result of the proceeding. In the situation where a caveat has been filed and where a notice to the caveator has also been filed and an appearance entered, Rule 61(39) and (41), the matter can proceed by notice of motion, consent order or withdrawal of caveator.

9 9.1.7 (39) A person intending to apply for probate or administration or claiming an interest in an estate with respect to which a caveat has been filed, may file a notice to caveator (39) in Form 76 in the registry in which the caveat was filed, and shall deliver a copy to the address for delivery set out in the caveat. (40) The notice to caveator shall state the name and interest of the person on whose behalf it is issued and, if that person claims under a will or codicil, shall also state the date of the will or codicil, and (b) the person s address for delivery to which Rule 4 (6) applies. [am. B.C. Reg. 165/97, s. 17.] (41) An appearance to a notice to caveator shall be in Form 7. (b) (c) V. Electronic Search and Court Services Court services online now enables you to do searches for probate from your office computers at This service currently contains information on any probate province wide from January Anything prior to that still requires a central search from Vancouver, New Westminster or Victoria. Other useful websites are: (i) Courts of BC at (ii) Supreme Court Civil Rules Appendix A-Forms at

10 9.1.8 VI. Registry Checklists A. Probate

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12 B. Administration

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14 C. Administration with Will Annexed

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