Small estate procedures in other jurisdictions vary widely which makes a comparative evaluation of them somewhat difficult. Canadian approaches to this issue are also distinct from American approaches.
A. Small Estate Procedures in Other Provinces
Canadian provinces generally take one of four approaches to the problem of probating small estates.
1. Specialized Court Procedures Alternative to a Formal Grant
Two provinces have created specialized court procedures that authorize representatives to administer small estates without a formal grant. In Saskatchewan, the Administration of Estates Act and accompanying regulations provide for a simplified procedure for estates valued at less than $25,000 and consisting only of personal property. The estate representative may bring an ex parte motion to a judge who may order the property to be transferred to the representative without a grant. Unlike a grant of probate, the order applies only to the particular assets listed in the motion. The representative becomes liable to pay reasonable funeral expenses and the debts of the deceased and to distribute the remainder to the beneficiaries or next of kin. The order authorizes financial institutions to release assets to the representative and protects them from the risk of liability. [85]
Manitoba has a similar provision that provides for a court order transferring a deceased’s property to an estate representative without a grant. In Manitoba, the estate may include real property but must have a value of less than $10,000.[86] Again, there is no requirement to give notice to beneficiaries or creditors.
2. Administration by the Public Trustee Without a Grant
In some provinces, there is legislation that either simplifies or eliminates the probate process where the public trustee assumes the administration of small estates where no one else is available to do so. There is no obligation on the public trustee to undertake small estate administration under these provisions. Therefore, they are only effective to the extent that public trustees choose to exercise their discretion.
For example, in Alberta, the Public Trustee Act contains two different options for the administration of small estates which apply both to testacies and intestacies. Section 13, titled “Summary disposition of small estates”, provides that, where no one has been granted probate, the Public Trustee may take possession of and administer an estate consisting only of personal property valued at less than the prescribed amount (currently $5,000).[87] There is no need for the Public Trustee to obtain probate under this provision. Instead, there is a prescribed form for the Public Trustee to complete which is to act as conclusive proof of the Public Trustee’s authority.
Section 16 of the Alberta Public Trustee Act applies in relation to somewhat larger estates (currently less than $50,000). Again, the Public Trustee may elect to administer the estate where no one else has been granted probate. But there are incrementally greater procedural requirements under this provision. The Public Trustee must file an election and affidavit disclosing the value of the estate and the names and interests of anyone who may have an interest in the estate. This must be certified by the court and, on completion of the administration, the Public Trustee must file an account of the administration.[88] These small estates provisions are in addition to the more general provision granting the Public Trustee authority to apply under the usual process to administer an estate where no one else has done so.[89]
In Saskatchewan, the official administrator may choose to administer estates valued at less than $25,000 without a grant even where the estate contains real property.[90] New Brunswick provides that the public trustee may administer estates valued at less than $3,000 on filing an affidavit with the Registrar.[91] Northwest Territories has a similar provision for estates valued at less than $10,000.[92]
Nova Scotia similarly provides the public trustee with discretion to administer estates valued at less than $25,000 but only in the case of intestacies.[93] The Law Reform Commission of Nova Scotia considered the possibility of creating a small estate procedure in its 1999 Final Report, Probate Reform in Nova Scotia. It rejected the idea, expressing concern that this could result in a third kind of estate and make the system too complex. The Commission preferred the status quo in which representatives either choose to apply for formal probate or, alternatively, bypass the system altogether.[94]
3. Assistance from Court Staff in Completing the Application for a Grant
Another option for reducing the cost of administering small estates is to require court staff to complete the necessary paperwork on behalf of the applicant. In Alberta, court staff have the discretion to prepare application materials for estates consisting of personal property only that is valued at less than $3,000.[95] However, this provision will disappear when Alberta’s new Estate Administration Act comes into force, likely in the spring of 2015.[96]
In Saskatchewan, the Registrar is required to prepare grant applications for applicants in estates worth up to $15,000.[97] Ontario once had a similar provision in the Estates Act for estates valued at less than $1,000 but this was repealed in 1998.[98]
Under the Saskatchewan model, court staff assist applicants in completing the application materials but applicants must still meet all of the same evidentiary and procedural requirements for obtaining probate.
4. No Specialized Small Estate Procedure
British Columbia, like Ontario, has no legislation specifically addressing small estate administration.[99] However, British Columbia has made this choice intentionally by deciding not to bring into force a small estate process included in its new Wills, Estates and Succession Act (WESA).[100]
Small estate administration was identified as a reform priority during the three year review of British Columbia wills and estates law that preceded the enactment of WESA. The British Columbia Law Institute (BCLI) recommended in an interim report that a process of administration by statutory declaration be available for estates valued at less than $50,000 with no real property.[101] This recommendation was adopted in Part 6, Division 2 of WESA entitled Small Estate Administration. However, the Ministry of the Attorney General later announced that Division 2 would not be brought into force. In drafting the new Probate Rules, the Ministry determined that a separate small estate procedure was no longer necessary. Instead, the Probate Rules provide two options for filing an application for estate grant where there is a will: a short-form affidavit for simple estates and a long-form affidavit for more complex estates. Applicants are entitled to use the short form if the application meets a list of criteria indicating that the estate is a “simple” one. Some attributes of simplicity include the following: the executor is named in the will, there is evidence that there is no later will, th