Do Small Estates Under $25,000 Pay Probate Fees in BC?

If someone close to you has died and the estate looks modest, you may wonder whether you must pay probate fees at all. In British Columbia, a small estate can avoid both the probate fee and the court filing fee, but only if its value is measured the way the law requires.

That measurement is where people often go wrong. This article explains the $25,000 threshold, which assets count toward it, what you pay just above it, and what to do if more assets turn up after the grant is issued.

This article covers the law of British Columbia.

The $25,000 threshold

No probate fee is payable under the Probate Fee Act if the value of the estate does not exceed $25,000. The separate $200 Supreme Court filing fee for commencing the proceeding is also not payable to obtain a grant of probate or administration when the estate does not exceed $25,000.

These are two different charges. The probate fee is set by the Probate Fee Act and is based on estate value, while the $200 is a court fee under the Supreme Court Civil Rules. Confirm current amounts with the court registry before you file, because fee schedules can be amended.

How the value of the estate is measured

The Act defines the value of the estate as its gross value, as stated under oath in a Statement of Assets, Liabilities and Distribution that is exhibited to the affidavit leading to the grant. That definition contains no deduction for debts or mortgages. An estate with a large mortgage can therefore be over the threshold even if little is left after the debt is paid.

How a particular asset, such as a house, should be valued for this statement depends on the facts. A lawyer or the court registry can confirm the approach before you swear the affidavit.

Which assets count and which do not

The fee base is made up of property that passes to the personal representative at the date of death. It includes real property and tangible personal property in British Columbia, and, if the deceased was ordinarily resident in BC immediately before death, intangible personal property wherever it is located.

• Real estate in another province or country is outside the base, because it is not situated in British Columbia.
• Bank accounts and securities outside BC count only if the deceased was ordinarily resident in BC just before death.
• Assets that pass directly to someone else at death, such as by right of survivorship or a valid beneficiary designation, fall outside the definition.
• Jointly held land with a right of survivorship passes to the survivor rather than to the personal representative.

There are exceptions. If joint owners cannot be shown to have survived each other, or die at the same time, each is deemed to have held the property as a tenant in common, so a share can pass through the estate. A holding that is only a tenancy in common also passes to the personal representative. A beneficiary designation that is invalid, names someone who has died, or names the estate may result in the benefit being payable to the estate, and it then forms part of the fee base.

What happens just above $25,000

Once the value exceeds $25,000, the fee is $6 for every $1,000, or part of $1,000, above $25,000 up to $50,000. Above $50,000, it adds $14 for every $1,000, or part of $1,000, over $50,000. Any part of $1,000 is charged as a full $1,000.

Because the fee is added to the court filing fee when the estate is over the threshold, plan for both charges. The probate fee must be paid before the grant issues.

If more assets turn up later, and what to do next

If, after the grant, you learn of an asset you did not disclose or that a value must be revised, you must disclose it to the court and pay the difference between the fee paid and any greater fee that would have been payable. Under the court rules, if you find assets, liabilities or incorrect or incomplete information after filing, you must promptly file a supplemental affidavit (Form P14, or P15 for a non-domiciled grant) and pay all related fees. This matters for a small estate, because a late discovery could push it over $25,000.

• List every asset and debt, and note how each one passes at death.
• Separate assets with survivorship or a valid beneficiary designation from those passing to you as personal representative.
• Add up the gross value of the remaining assets without subtracting debts.
• Confirm current fee amounts with the registry before filing.
• If new assets appear after the grant, speak to a lawyer about the supplemental affidavit and any extra fee.

Frequently asked questions