Applying for Probate for a “Small Estate” in Ontario

June 8, 2021 Sanaya Mistry Elder Law, Estate & Trust, Wills Tags: , , , , 0 Comments

Further to our article “Small Estate” in Ontario now $150,000, as of April 1, 2021, for an estate valued at $150,000 or less, probate can be applied for through the small estate court process.

Applying for probate can be a complicating and overwhelming process, especially considering the fact that the steps that need to be taken or forms that need to be filled out can vary depending on the specific circumstances of the estate.

The Probate of a Small Estate webpage provides helpful information on some of the steps included in applying for probate of a “Small Estate”.

Please see below a brief overview of some of the important things to consider when applying for probate of a “Small Estate”.

Forms

Depending on the specific circumstances of the estate, different court forms may need to be completed and filed with the court.

As noted in Rule 74.1.03(1) of the Rules of Civil Procedure, “A person may seek a small estate certificate by filing an application for a small estate certificate (Form 74.1A) together with,

(a) a request to file an application for a small estate certificate or an amended small estate certificate (Form 74.1B);

(b) proof of death;

(c) a draft small estate certificate (Form 74.1C);

(d) if there is a will, the original of the will and of any codicils, together with the following evidence of due execution of the will and each codicil:

(i) if the will or codicil is not in holograph form,

(A) an affidavit of execution (Form 74.8) of the will or codicil,

(B) if the will or codicil contains an alteration, erasure, obliteration or interlineation that has not been attested, an affidavit as to the condition of the will or codicil at the time of execution (Form 74.10), or

(C) if each of the witnesses to the will or codicil has died or cannot be found, such other evidence of due execution as the court may require, or

(ii) if the will or codicil is in holograph form, an affidavit attesting that the handwriting and signature in the will or codicil are those of the deceased (Form 74.9);

(e) any security required by the Estates Act; and

(f) such additional or other material as the court directs.”

Estate Administration Tax

It is important to determine the value of the estate.

Estate Administration Tax is payable on the value of the estate of a deceased person as of the date of their death, for estates valued over $50,000.

For estates valued over $50,000, the Estate Administration Tax will be calculated as $15 for every $1,000 (or part thereof) of the value of the estate. Estate Administration Tax can be calculated using the calculator provided on this Ministry of the Attorney General webpage.

 

Service of Documents

Pursuant to Rule 74.1.03(3) of the Rules of Civil Procedure, “the applicant shall send or give the following documents to each person entitled to share in the distribution of the estate, including charities and contingent beneficiaries:

  1. A copy of the application for a small estate certificate (Form 74.1A) and of any attachments.
  2. If there is a will, a copy of the will and of any codicils.”

It’s important to note that pursuant to Rule 74.1.03(4) of the Rules of Civil Procedure, “if a person who is entitled to share in the distribution of the estate is less than 18 years of age, the documents listed in subrule (3) shall not be sent to the person but shall instead be sent or given to a parent or guardian and to the Children’s Lawyer.”

Further, a copy of the application and a copy of the will and codicil (if applicable) may need to be provided to Office of the Public Guardian and Trustee.

 

Detailed information in respect of “Small Estates” and the process of applying for probate of a “Small Estate” can be found in Rule 74 of the Rules of Civil Procedure.

 

Please note, the above-noted information has been provided for informational purposes only and is not legal advice. For more information, please reach out to one of our team members who will be happy to assist you.

Thank you for reading.

Sanaya Mistry

 

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