New Probate Rules for Small Estates in Ontario
Ontario has introduced legislation setting out new simplified probate rules for small estates. The changes will come into effect on April 1, 2021.
Currently, the process to apply to manage an estate in Ontario is the same for all sizes of estates, whether the estate is worth $10,000 or $10,000,000. As a result, the sometimes complex, time-consuming and costly process of applying for probate may deter people from claiming smaller estates.
However, under new legislation, with changes introduced through the Smarter and Stronger Justice Act, Ontario is setting the limit for a small estate at $150,000 and removing the requirement of postinng a bond in most small estate probate applications. The purpose of these changes is to make it easier to file a probate application for a small estate that may otherwise go unclaimed.
In addition, under a new 2021 regulation, a person may apply for a Small Estate Certificate, in place of a Certificate of Appointment of Estate Trustee, which will have the same effect as probate. The main difference, however, is that the Small Estate Certificate grants a more limited authority to the estate trustee.
Other changes introduced to simplify processes for small estates include:
- allowing for the completion and filing of a new simpler application form;
- removing requirements for certain supporting documents to be filed (for example, a commissioned affidavit of service); and,
- guiding applicants on the process of filing a probate application for a small estate.
What is Probate?
After a person dies, the belongings, real estate and other assets they leave behind will become part of their estate and, in Ontario, the only person with the legal authority to manage or distribute the estate is an estate trustee.
In certain cases, a court application may be required. Probate is a procedure of asking the court to:
- give a person the authority to act as the estate trustee of an estate;
- confirm the authority of a person named as the estate trustee in the deceased’s will;
- formally approve that the deceased’s will is their valid last will.
Currently, the probate application is successful, the court will issue a Certificate of Appointment of Estate Trustee. The Certificate is proof that a person has the legal authority to deal with the estate. Additionally, if there is a will, the Certificate is proof that the will is valid. Only one Certificate can be issued by the court.
It should be noted that a probate Certificate is not always required in order to administer an estate. Situations in which a person might apply for a probate Certificate include:
- the deceased person died without a will,
- the deceased’s will does not name an estate trustee,
- a financial institution wants proof of a person’s legal authority to receive the money or investments of the deceased,
- the estate’s assets include real property which does not pass to another person by right of survivorship,
- there is a dispute about who should be the estate trustee,
- there is a dispute or potential dispute about the validity of the will, or
- some beneficiaries named in the will are not able to provide legal consent.
When dealing with probate issues, it is best to contact an experienced estates lawyer to guide you through the process.
Estate disputes are complicated: they involve high levels of emotion, usually by individuals who are grieving the loss of a family member or who are dealing with a loved one who is very ill. Such disputes can become quite lengthy and can take months or even years to resolve, prompting individuals to take sides, creating acrimonious divisions, and eating into the value of an estate.
At Campbells LLP, our team of compassionate and highly skilled Oakville estate litigation lawyers have been assisting clients with estate disputes and resulting litigation since 1999. We are proud of the strong, long-lasting relationships that we build with our clients and provide a steady sounding board and legal advice to guide them through what can be one of the most emotionally draining times in their lives. With our help, we can ensure that the legacy of our client’s loved ones is carried out exactly as they wished, that their health and well-being is taken care of, and that their estate is protected.
At Campbells LLP, our exceptional estate lawyers can represent you in all estate litigation matters. We know that many individuals work during the week and cannot meet during the day. One of our lawyers would be pleased to meet you in the evening or during the weekend, by appointment, if your schedule so requires. Contact us online or at (905) 828-2247. We look forward to speaking with you and going through this process by your side.