Tag: Probate Application
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”.
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:
- A copy of the application for a small estate certificate (Form 74.1A) and of any attachments.
- 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.
As Ian Hull and Daniel Enright of our office blogged last week, as of April 1, 2021, small estates in Ontario will be defined as those worth $150,000.00, instead of the $50,000.00 figure we are all used to.
The Ontario Attorney General, Doug Downey, advised that the process of applying to manage an estate in Ontario was the same, whether it is worth $10,000.00 or $10 million, which often deters people from claiming smaller estates.
As a result of this change, more estates will be able to access a simplified probate process, though the amount of probate fees payable will not change.
Although these changes are welcome, some consider that there are still a number of other issues outstanding, such as:
- Due to real estate values, estates in Toronto could be considered small, whereas that would not be the case in other parts of the province (e.g. a $500,000.00 estate in Toronto could be considered small); and
- The probate process itself could be simplified, as many financial institutions take the position that assets cannot be managed until such time as probate is obtained (which in turn can often cost an estate, as asset values fluctuate).
A recent article discussing the above-noted points can be found here.
It will certainly be interesting to see if the new changes will make a difference, and whether more changes are coming, in light of the concerns expressed by various members of the legal profession.
Thanks for reading!
Find this blog interesting? Please consider these other related posts:
In recent months, an Ontario Superior Court of Justice province-wide Notice to the Profession has permitted the filing of applications for a Certificate of Appointment of Estate Trustee with a Will or a Certificate of Appointment of Estate Trustee Without a Will (“probate applications”) by email. Since then, the Rules of Civil Procedure were updated, effective January 1, 2021 to permit for the service of most court materials by email (among other updates).
Most recently, as of January 8, 2021, the Rules of Civil Procedure were further updated to provide for the options of serving notice of probate applications by email, courier, or personal service. Amended sub-rules 74.04(7) and 74.05(5) now read as follows:
Notice under this rule shall be served on all persons, including charities, the Children’s Lawyer and the Public Guardian and Trustee, and, unless the court specifies another method of service, may be served by,
(a) personal service;
(b) e-mail, to the last e-mail address for service provided by the person or, if no such e-mail address has been provided, to the person’s last known e-mail address; or
(c) mail or courier, to the person’s last known address.
Previously, the Rules of Civil Procedure required the Notice of Application in respect of a probate application to be served by regular lettermail.
Forms 74.06 and 74.16 (Affidavits of Service in respect of probate applications) have also now been updated to refer to these new manners of service of the Notice of Application in respect of a probate application. The revised forms are available here.
This further development in the modernization of estates law procedures is welcome and can be expected to better enable lawyers to assist clients in serving and filing probate applications more efficiently while working remotely during the pandemic and beyond.
Thank you for reading.