1998/99 Legislative Session: 3rd Session, 36th Parliament
FIRST READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


HONOURABLE JOY K. MacPHAIL
MINISTER OF FINANCE AND
CORPORATE RELATIONS

BILL 55 -- 1999

PROBATE FEE ACT

 
Contents

Section  
1  Definitions
2  Probate fee
3  Power to make regulations
4  Tax and Consumer Rate Freeze Act
5  Transition
6-8  Amendments to this Act
9  Commencement

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Definitions

1 In this Act:

"grant" means a grant or ancillary grant of probate and administration;

"resealing" means a resealing under the Probate Recognition Act;

"value of the estate" means the gross value, as deposed to in a Statement of Assets, Liabilities and Distribution exhibited to the affidavit leading to a grant or to a resealing, as the case may be, of the real and personal property of the deceased situated in British Columbia that passes to the personal representative at the date of death.

Probate fee

2 (1) In addition to any fees payable under the Rules of Court to commence a proceeding to obtain the issue of a grant or a resealing and to any fees payable under the Rules of Court to file documents within that proceeding, a fee determined in accordance with this section must be paid to the government, before the issue of any grant or before any resealing, as the case may be, on behalf of the estate of a deceased by the personal representative of the deceased but is payable by that personal representative in his, her or its representative capacity only.

(2) No fee is payable under this Act

(a) on a grant de bonis non, a cessate grant or a double probate, or

(b) if the value of the estate does not exceed $25 000.

(3) If the value of the estate exceeds $25 000, whether disclosed to the court before or after the issue of the grant or before or after the resealing, as the case may be, the amount of fee payable is $4 for every $1 000 or part of $1 000 by which the value of the estate exceeds $25 000.

(4) If, after the issue of any grant or after any resealing, the personal representative learns of the existence of an asset of the deceased that was not disclosed in the Statement of Assets, Liabilities and Distribution exhibited to the affidavit leading to the grant or to the resealing, determines that the value attributed to an asset in that statement must be revised or determines that an asset was otherwise not properly disclosed, the personal representative must disclose to the court the existence and value of that asset and must pay to the government the difference between the fee paid before the issue of the grant or before the resealing and any greater fee that would have been payable under subsections (1) to (3) had the asset been disclosed or appropriately valued in the original Statement of Assets, Liabilities and Distribution.

Power to make regulations

3 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations defining "gross value" and "situated in British Columbia" for the purposes of this Act.

(3) Regulations that may be made under this Act may be made retroactive to April 1, 1988 or any later date that the Lieutenant Governor in Council may determine, and a regulation made retroactive is deemed to have come into force on the date specified on the regulation.

Tax and Consumer Rate Freeze Act

4 This Act is enacted, applies and has effect despite the Tax and Consumer Rate Freeze Act.

Transition

5 (1) Whether or not the court has, before the date that this Act receives Royal Assent, made an order to the contrary, any money paid to and accepted by the government after March 31, 1988 and before the date that this Act receives Royal Assent for or in respect of a grant or a resealing, whether or not that money was voluntarily paid,

(a) is conclusively deemed to have been owing under this Act to, and validly collected by, the government in relation to the assets of the estate disclosed, and as valued, in the Statement of Assets, Liabilities and Distribution exhibited to the affidavit leading to the grant or to the resealing,

(b) must be applied against the fee payable under this Act in relation to the estate, and

(c) is conclusively deemed to be payment in full of the fee payable under this Act in relation to the assets of the estate disclosed in the Statement of Assets, Liabilities and Distribution exhibited to the affidavit leading to the grant or to the resealing, but, if the personal representative determines that the value attributed to an asset disclosed in that statement must be revised for a reason other than the definition or redefinition of "gross value" in a regulation made under section 3, the personal representative must comply with section 2 (4) in relation to that asset.

(2) Without limiting subsection (1), a person does not have a right of action or other remedy against the government for the recovery of money that was, before the coming into force of this section, paid to the government for or in respect of a grant or a resealing.

 
Amendments to this Act

6 Section 2 (3) of the Probate Fee Act is repealed and the following substituted:

(3) If the value of the estate exceeds $25 000, whether disclosed to the court before or after the issue of the grant or before or after the resealing, as the case may be, the amount of fee payable is $5 for every $1 000 or part of $1 000 by which the value of the estate exceeds $25 000.

7 Section 2 (3) of the Probate Fee Act is repealed and the following substituted:

(3) If the value of the estate exceeds $25 000, whether disclosed to the court before or after the issue of the grant or before or after the resealing, as the case may be, the amount of fee payable is $6 for every $1 000 or part of $1 000 by which the value of the estate exceeds $25 000.

8 Section 2 (3) of the Probate Fee Act is repealed and the following substituted:

(3) If the value of the estate exceeds $25 000, whether disclosed to the court before or after the issue of the grant or before or after the resealing, as the case may be, the amount of fee payable is

(a) $6 for every $1 000 or part of $1 000 by which the value of the estate exceeds $25 000 but is not more than $50 000, plus

(b) $14 for every $1 000 or part of $1 000 by which the value of the estate exceeds $50 000.

Commencement

9 (1) Sections 1 to 3 are deemed to have come into force on April 1, 1988 and are retroactive to the extent necessary to give them effect on and after that date.

(2) Section 6 is deemed to have come into force on July 1, 1991 and is retroactive to the extent necessary to give it effect on and after that date.

(3) Section 7 is deemed to have come into force on September 1, 1993 and is retroactive to the extent necessary to give it effect on and after that date.

(4) Section 8 is deemed to have come into force on April 1, 1997 and is retroactive to the extent necessary to give it effect on and after that date.

 
Explanatory Note

This Bill ensures that the probate fees collected by the government of British Columbia since April 1, 1988 have appropriate legislative authority, ensures that the government may retain all of those fees collected by it over that period and establishes in legislation the probate fee payable at the date of the coming into force of the Bill. The Bill also provides that the Lieutenant Governor in Council may define "gross value" and "situated in British Columbia" in order to ensure that the fees that have been collected to date may be retained while ensuring that no greater fees than those collected to date in relation to the disclosed value of the estate will be payable as a result.


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