Changes to Probate Coming January 1, 2022
Along with the amendments to the Succession Law Reform Act that are coming into force, there will be two other significant changes to estate law in Ontario in the New Year.
First, the rules that govern estate administration are being amended by regulation as of January 1, 2022.
Changes to the rules
The amendments to the estate rules in the Rules of Civil Procedure are relatively small. Most of the changes update the names of the estate forms in the rules, primarily in rules 74 and 74.1. Rule 74 will still apply to non-contentious estate proceedings, rule 74.1 will still apply to non-contentious proceedings for small estates, and rule 75 will continue to govern contentious estate proceedings.
One rule will govern all applications to appoint an estate trustee
The most noteworthy change to the rules is that all initial applications to appoint an estate trustee will be governed by one rule – 74.04 – regardless of whether or not the deceased left behind a will. When the new version of rule 74.04 comes into force, rule 74.05, which currently applies to applications without a will, will be revoked.
Simplified forms for each component of applying for probate
In the New Year, all applicants will also use the same form to apply to be appointed as an estate trustee. Form 74A will replace six forms, which should make the application process simpler. Currently the application form used by an applicant depends on whether:
- the applicant is a person or a corporation;
- a will is attached to the application;
- the application is for a certificate limited to the assets referred to in the will; or
- there is no will.
There will also be only one form for applying to be appointed as an estate trustee after proceedings have already been initiated. An applicant will use the new Form 74J when applying:
- to be appointed as a succeeding estate trustee;
- to be appointed as a foreign estate trustee’s nominee;
- for confirmation by resealing an appointment of estate trustee, or for an ancillary appointment as estate trustee; and
- when applying to be appointed as an estate trustee during litigation.
The new estate forms will also be more streamlined because there will only be one form for each of the following components of the probate process:
- Consenting to an application to appoint an estate trustee. Form 74H will replace six different consent forms.
- Renouncing an intention to apply to be estate trustee. Form 74G will replace two forms.
- Swearing an affidavit of service. Form 74B will replace two forms.
- The certificate of appointment for estate trustees. Form 74C will replace 10 forms.
- The form of court order used in estate proceedings. Form 74I will replace eight forms.
Two forms will also no longer be required – Form 74.7 and Form 74.17. Notice of an application to be appointed as an estate trustee will no longer be required.
While there will still be a lot of paperwork to attach to an application to be appointed as an estate trustee, the overall process of applying for probate should be simpler and more accessible to the public.
Thanks for reading, and have a great day!