My Friend/Sibling/Cousin/etc. Died Without A Will. Can I Apply To Administer His/Her/Their BC Estate?
We frequently receive calls from friends and loved ones asking if they can apply to administer the estate of a deceased friend or family member. The answer is usually ‘yes’, but the success of their application will depend on whether any person with greater priority under the legislation also applies to be appointed the ‘Administrator’ of the deceased’s estate. Even if no one else applies, the client may want to consider who the ultimate beneficiaries of the estate will be, what liability or risk is associated with acting as the Administrator, and other factors. In some cases, a well-intentioned family member or friend may decide not to apply after receiving legal advice about being appointed the Administrator of the estate.
With respect to who may apply to be appointed Administrator, the Wills, Estates and Succession Act, SBC 2009, c 13 (the “Act”) sets out the relevant law. Section 130 of the Act establishes the priority among applicants, as follows:
(a) the spouse of the deceased person or a person nominated by the spouse;
(b) a child of the deceased person having the consent of a majority of the children of the deceased person;
(c) a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;
(d) a child of the deceased person not having the consent of a majority of the deceased person’s children;
(e) an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;
(e.1) a person, other than the spouse or child of the deceased person, nominated by an intestate successor of the deceased person if that person has the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who nominated the person to apply for a grant of administration;
(f) an intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;
(g) any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.
References above to the ‘intestate successor(s)’ of an estate are determined according to the provisions of Part 3 of the Act. According to sections 20 to 25 in Part 3, an intestate estate (where there is no will) generally devolves as follows: to a spouse (where there are no descendants), to a spouse and descendants (where the deceased is survived by a spouse and descendants), to descendants only (where no spouse is living), to the deceased’s parents, to the descendants of parents, to grandparents or descendants of grandparents, to great-grandparents, and to descendants of great-grandparents. If the deceased had no living relatives within four degrees of kinship (s. 23(3) of the Act), then the estate escheats to the crown, which means the government inherits the deceased’s estate (s. 23(2)(f) of the Act).
Section 132 of the Act sets out that the court may appoint “any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.” The Supreme Court has stated that evidence of a competing personal interest or animus toward a beneficiary could potentially amount to special circumstances, as might evidence that the listed person is unable, unwilling or reasonably unlikely to put the estate’s best interests first (Woodward v Weinstein, 2020 BCSC 1667, at paras. 91-92).
In a recent case (Raye v Phillip Estate, 2021 BCSC 387), the court summarized some of the key principles governing the appointment of an Administrator:
[27] In exercising its discretion to appoint an administrator, the court must consider the best interests of the estate and all persons interested in the estate. The court should appoint an administrator who is likely best able to convert the estate to the advantage of those who are interested in it: Flores v. Mendez, 2014 BCSC 951 at paras. 35-41. The support of the majority of beneficiaries is a significant factor in determining an appropriate administrator: Godby Estate (Re), 2015 BCSC 1809 at para. 47. An administrator must act with “detachment and even handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15. An administrator should play a neutral role and not pick sides between beneficiaries and should be indifferent as to how the estate is to be divided: Kolic Estate (Re), 2016 BCSC 1312 at paras. 25-26. An actual or perceived conflict of interest may cause a court to appoint a new executor or administrator: Ching Estate (Re), 2016 BCSC 1111 at para. 22.
An individual who wishes to apply to be appointed Administrator of a deceased person’s estate should consider where they rank in terms of priority under section 130 and whether or not any other person may also seek to apply. If another person also seeks to apply, the individual should consider whether that person ranks higher in priority or may be able to point to ‘special circumstances’ that may convince the court to depart from the order of priority listed in section 130 of the Act in exercising its discretion to appoint an appropriate Administrator. In the vast majority of cases, there is either only one person that wishes to apply or the family is able to come to a decision about who should apply.
Even in the absence of a competition between applicants, it is important to obtain legal advice about the risks and liabilities inherent in being appointed an Administrator. Acting as an estate Administrator is a grand responsibility. The role is fiduciary in nature, which means an Administrator must always put the best interests of the beneficiaries first and maintain an even hand in all dealings with the beneficiaries. This can be difficult when the Administrator is also a beneficiary and where there is disharmony among beneficiaries, such as where siblings do not get along. An Administrator is also legally responsible for ensuring the estate’s debts and taxes are paid. If the estate’s assets are not sufficient to satisfy all debts and expenses, then the Administrator must follow the order of priority set out in section 170 of the Act when paying debts and expenses. Many siblings or friends may be unwilling to take on the administration of a loved one’s estate when it becomes apparent that the deceased died insolvent and the administration role promises more risk than reward. As an Administrator has full conduct of the estate, the Administrator must deal with any ongoing or new legal disputes or lawsuits, such as ongoing divorce proceedings or personal injury cases. Litigation matters can require a lot of work and effort to resolve and may cause a lot of stress. Many friends or siblings may be unwilling to take on the responsibility of resolving a divorce or other legal dispute that is not of their own making. These are only some of the Administrator’s responsibilities, though with proper advice and guidance from a legal professional these responsibilities can be adequately and are routinely carried out by Administrators.
While there are, of course, advantages associated with being appointed an Administrator (satisfying a feeling of moral duty, for one), it is important to obtain advice about both the positive and negative aspects of being an Administrator before deciding whether to apply.
If you have questions about applying to be appointed the Administrator of an estate, contact Veronica Manski, Probate and Estate Administration Practice Leader to arrange a consultation.