Spry Hawkins Micner

There is a significant difference between the words “property” and “estate” in a Will.

When a person dies, their Estate is born, legally speaking. An “Estate” consists of every asset (and debt) a person owned by themselves. Those assets, again speaking legally, are comprised of real property and personal property.

Assets owned jointly with another person(s) will NOT fall into the deceased person’s Estate. Those assets will move, via the right of survivorship, to the other person.

Meanwhile, “Real” property is land and any buildings sitting on the land. “Personal” property, on the other hand, is everything else, such as bank accounts, cars, RRSPs, TFSAs and so forth.

In your question, you also refer to the “residue” of an Estate.

In a Will, typically, a Will Maker will bequeath a gift to a person. An example is a fixed sum of money to a grandchild. There may be a charitable donation as well. These are what is known as “specific gifts”. The specific gifts, together with funeral costs and taxes, are paid out of the Estate. What is left in the Estate after paying those required items and the specific gifts, is the “residue” of the Estate.

There is always a residue in an Estate. That is partly because when a person makes a Will, it cannot be predicted what will be the size of their Estate at the time of their death. It is therefore best to distribute the residue of an Estate by way of percentage. That way, every person you want to benefit will get something, regardless the size of the Estate residue.

In your question, you address the issue of your concern about the Executor. In your case, you are estranged but related.

Not all Wills are drawn in the same way. My Wills always contain a bond clause, where the concern is with the trustworthiness of the Executor. That can be particularly significant with larger Estates.

The Estate bond exists to protect beneficiaries where an Executor turns “bad”. So if the Will contains the bond clause, the Executor has to obtain an Estate bond. Otherwise, the Court will not grant Probate and the Executor won’t be able to assume control over the Estate assets.
From the beneficiary’s perspective, where she or he is concerned with the choice of Executor, it may be preferable to have the Executor replaced, rather than just trying to get an Order requiring an Estate bond. If the bond clause is not in the Will, it may be very difficult to convince a Court to require a bond. And bonds are expensive. The Estate may be hard pressed to pay for a bond, depending on its size.

Each Estate is different but where you as beneficiary are estranged from the Executor, it may be best to apply for an Order replacing the Executor or, as an alternative, to be appointed as a Co-Executor.

Your question appears to address the situation where there is no Will. An application for Letters of Administration is made when no Will can be found after a person dies.

The legal term for dying without a Will is known as “Dying Intestate”.

When that happens, the distribution of the Estate is based upon legislation, and is dependent on who survives the deceased and in what way they are related.

In current B.C. law, the Intestate Estate will go first to a surviving spouse, and the deceased’s children (natural or legally adopted).

If there is no surviving spouse, the Estate will go to the children in equal portions.

If a child predeceased the person who died, but themselves had children, then the portion that deceased child would have inherited will go to that deceased child’s children when those children reach age 19. If there are several children, they will take the portion in equal shares.

If there happens to be a Will, however, then the situation is different.

Most Wills are written in such a way that a person given a bequest has to survive the Will Maker in order to inherit. The particular clause will usually state that if that beneficiary fails to survive the deceased, the gift will go elsewhere.

It is not uncommon for an Executor or other person to discover an asset following the grant of Probate.

That is especially so where the deceased might have done banking or kept assets digitally, using their computer.

The passwords may not have been circulated to the Executor, and so it is unknown initially whether “other” assets may exist.

Sometimes, these discoveries are made accidentally.

The same can be said for a subsequent inheritance. An Estate can inherit, although a Will Maker would be wise to change her or his Will, if possible, where a chosen beneficiary has unexpectedly died.

Where this kind of event happens following the issuance of a grant of Probate, a new grant is not required.

However, the asset and its value must be disclosed to the Court and Probate fees have to be paid according to the asset’s value.

Disclosure is made by way of a supplementary affidavit of the Executor.

The Affidavit will detail the asset and provide its value at the date of death. Payment of the Probate fee should accompany the Affidavit.

In the process of applying for a grant of Probate, the Executor needs, under current B.C. law, to send a Notice of her or his intention to apply for the grant.

Your Sister has to be given this Notice.

If you cannot locate her, the first thing to do is arrange a trace.

There are several tracing companies in B.C. that offer the service. Whichever company you choose to work with, will require from you as much information on your Sister as you can provide.

That information might include your Sister’s last known address, to which Province she may have moved, whether she is employed, whether there are other family members who might know something, and so on.

If the trace is unsuccessful, you will need to apply under B.C. Supreme Court Civil Rule 25-2 for an Order either dispensing with Notice or notifying your Sister in a different way (for example, by posting an Advertisement in a newspaper).

Once you have the Court Order, you then can proceed to apply for the grant of Probate.