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, there are no known issues respecting execution of the will and there are no apparent modifications to the will. The value of the estate is not relevant to the choice between the short-form or long-form affidavit.[102]

Although the B.C. government decided against bringing into force WESA’s small estate procedure, BCLI’s Interim Report on Summary Administration of Small Estates remains valuable as a discussion of the various small estates models proposed or adopted in other jurisdictions.[103] BCLI considered the option common in the rest of Canada and the Commonwealth of giving the public trustee responsibility for administering small estates. However, BCLI rejected this approach as inconsistent with the evolution of the public trustee’s role in British Columbia.[104] Instead, BCLI favoured a summary procedure that would allow estate representatives to distribute small estates by way of statutory declaration. 

BCLI’s proposal would allow a limited class of declarants to assume responsibility to administer a small estate by completing a statutory declaration in a prescribed form. Eligible declarants would include the executor, beneficiaries, a spouse or another entitled in an intestacy, another person with the consent of all persons entitled to a share of the estate or the official administrator.[105] The declaration would include a number of questions about the estate including facts about the deceased, the basis for the declarant’s entitlement to act, the value of the estate and the list of persons interested in the estate. The declaration would also contain information about the declarant’s legal obligations. Copies of the declaration would be sent to persons interested in the estate and, in some circumstances the Public Trustee. After a waiting period, the declaration would be filed with the court registry. There would be no scrutiny of the declaration by court officials.

BCLI’s statutory declaration procedure would be available to estates with a gross value of less than $50,000 and containing only personal property. BCLI found that this figure best represented “the value of a typical small estate in which the assets might consist of a motor vehicle, a modest bank account, some personal property of relatively negligible value”.[106] Estates containing real property would be excluded from the procedure since, under B.C.’s Land Titles Act, the transfer of real estate on death required proof of probate. BCLI suggested that this exclusion should be revisited if the legislation were amended to give the land title registrar some discretion in this requirement. There would be a statutory release from liability for anyone releasing assets to the estate in reliance on the declaration.

 

B. Small Estate Procedures in the United States

The U.S. approach to probate is quite different from that in Canada. U.S. courts have traditionally played a relatively intensive role in supervising the estate administration process.[107] This court-based formal probate model can be costly and creates delay in the settlement of straightforward estates.[108] This has sparked much criticism over the years. A first-hand critique of U.S. probate as applied to small estates was offered by an Alabama probate judge:

The judge of probate…comes in contact with the people of his county and hears a great many of their problems. One of the greatest hardships witnessed in the field of small estates occurs when probate proceedings are necessary to perfect the title to property in a decedent’s beneficiary or heir at law….

Mrs. Elenor Grigg, my chief officer in the probate court division, served under three probate judges prior to my election. Through the years she has witnessed the frustration and anger generated by the present system. When she has informed the beneficiary or heir of a small estate of the legal procedure necessary to obtain letters testamentary or letters of administration, the response has generally been: “It’s just not worth fooling with.”[109]

The Uniform Probate Code (UPC) is one reform introduced to offer a variety of non-judicial alternatives to the formal probate process.[110] The prevailing philosophy behind the UPC (and much state legislation) is to leave probate in the private sphere to the extent possible and have the court assume authority only where an interested person petitions the court to do so.[111]  

Small estate procedures in the United States have developed in response to this probate tradition and, as a result, are, themselves, quite distinct from those available in Canada. Canadian small estate processes tend to rely on public officials (the court or the public trustee) to assume responsibility for, or at least supervise, the application process. U.S. small estate procedures vary in their requirements but some popular models involve little or no contact with the courts. 

Therefore, it is important to consider to what extent particular U.S. small estate processes are appropriate models for Ontario reform. What might be termed a small estate process in