Land Title Practice Manual

162 Devolution And Administration Of Land

In This Volume

162 (1) Unless there is a right to land by survivorship, on the death of the land owner, land devolves to and is vested in the deceased owner’s personal representative in the same manner as personal property.

  • (2) Subject to this Act,
  • (a) a personal representative to whom land devolves holds the land as a trustee for the person beneficially entitled to it, and
  • (b) a person beneficially entitled to the land has the same power as a person beneficially entitled to personal property to require a transfer from the personal representative.
  • (3) Subject to this Act, land must be administered in the same manner as personal property, and all enactments and rules of law respecting
  • (a) the powers, duties and liabilities of a personal representative in respect of personal property,
  • (b) the effect of a grant of probate or administration,
  • (c) dealings with personal property before a grant of probate or administration, and
  • (d) the administration of personal property of a deceased person, including the payment of debts and expenses, apply to land.
  • (4) A disposition of land by only one or some of several joint personal representatives is not valid without the approval of the court, unless
  • (a) section 148 applies, or
  • (b) a grant of probate is granted to one or more of several persons named as executor with power being reserved to the other or others to apply for a grant of probate, and the disposition is carried out by the other person or persons to whom probate is granted.
  • (5) This section applies to land over which a person exercises by will a power of appointment as if the land were vested in the person.

2009-13-162, effective March 31, 2014 (B.C. Reg. 148/2013).

PRACTICE

Land Charged under the Land (Spouse Protection) Act

See s. 4 of the Land (Spouse Protection) Act, at chapter 41 (Family Matters), which provides:

  • 4 (1) If an entry has been made on the title under section 2, section 162(1) of the Wills, Estates and Succession Act applies to the devolution of the homestead.
  • (2) Despite any testamentary disposition or rule of law and subject to the liability of the land comprising the homestead for foreclosure or the payment of debts, a personal representative holds the homestead in trust for an estate for the life of the surviving spouse.

Application for Transfer on Intestacy

The registrar requires that the administrator file the appropriate documents necessary to transfer an interest in land under the Land Title Act.

The registrar will examine the grant of administration or grant of administration resealed in British Columbia, together with the affidavit of the administrator, in order to determine if there are any restrictions placed on the administrator by the court, and establish who is entitled on the intestacy.

Where the administrator conveys to one or more of several heirs, the registrar requires consents from the remaining heirs.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Rules of Intestate Succession

Where the administrator transfers on an intestacy, the registrar examines the rules of intestate succession contained in Part 3 of the Act (ss. 20 to 25) to ensure that they have been properly applied.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, paras. 675 and 679.