Probate for Small Estates

General Small Estate Definition

Different provinces define "small" differently, but it's important to understand that an estate may qualify as "small" even if it is worth millions of dollars.

In general, when determining whether an estate qualifies as "small", you sum only the values of assets that would normally go through probate, ignoring property owned with rights of survivorship, assets with named beneficiaries (e.g., RRSPs, life insurance policies), and other standard probate exclusions.

It may be able to bypass probate even if the estate isn't officially "small", so it's worth it to explore a "small estate" approach to settling an estate, even if at first glance the estate appears too valuable to qualify. Select a province above to see province-specific rules about small estate definition and available settlement approaches.

General Settlement Approaches

If the estate does qualify as small, then you can commonly use one of the following approaches (depending on province):

• Court Order: Under this approach, you obtain a simple court order that allows you to settle the estate.
  1. Submit a small estate application to the court and receive a court order enabling you to settle the estate
  2. Obtain possession of estate assets by presenting the order to current custodians of the assets
  3. For certain property (e.g., vehicles) you must also get the title transferred with the appropriate government agency
  4. Resolve any estate debts if appropriate
  5. Distribute remaining estate assets to the rightful recipients
• Public Trustee: Some provinces allow the public trustee to settle a small estate for you. Under this approach, you simply request that the public trustee handle the estate (you can be refused). The downside to this approach is that you lose all control.
• Unofficial: You may be able to avoid probate if the existing asset custodians allow you to take possession of the assets without official court documents such as a probate Grant of Letters. However, if the estate contains real property (i.e., real estate), or if a custodian such as a financial institution requires an official executor appointment, then probate will be required.

The details of the above approaches vary quite a bit by province, so its best to select your province from the list at the top of this page and use those specific instructions.

Cautions

Even if the estate does qualify for one of the small estate treatments, you may want to go through probate anyway for the increased liability protections and protections from creditors it provides.

For example, creditors can take the heirs (or even the executor) to court if debts have not been satisfied and the heirs have inherited property that could have been used to pay the debts (see also Estate Debts and Claim Limitations).

The bottom line is that if even if the estate qualifies for a small estate treatment, you should strongly consider going through full probate if estate solvency is uncertain, or if you are concerned that the estate may become entangled in a lawsuit for any reason (e.g., a disgruntled heir).