Remember travel? Remember getting on an airplane and going somewhere (anywhere) else? Although you would be forgiven for thinking of these activities as science fiction due to recent world events, with the COVID-19 pandemic hopefully on its downward trend the idea of travel could again be creeping back into the collective consciousness.
Although the more common souvenirs to bring back from a vacation are likely a sunburn and some tacky items with the name of the destination emblazoned across it, as this is an estate blog it got me thinking of whether there may be any estate related souvenirs that you could bring back. Could you, for example, sign a new Last Will and Testament while on vacation, potentially adding a Will with an exotic destination name at the top to the list of items you bring back? Could such a Will later be admitted to probate in Ontario? Like any good legal question the answer is “maybe”.
In Ontario the potential admittance of a foreign Last Will and Testament is governed by section 37(1) of the Succession Law Reform Act, which provides:
“As regards the manner and formalities of making a will of an interest in movables or in land, a will is valid and admissible to probate if at the time of its making it complied with the internal law of the place where,
(a) the will was made;
(b) the testator was then domiciled;
(c) the testator then had his or her habitual residence; or
(d) the testator then was a national if there was in that place one body of law governing the wills of nationals.” [emphasis added]
In accordance section 37(1)(a) of the Succession Law Reform Act, a foreign Will can be admitted for probate in Ontario so long as it complied with the internal law of the place where it was made at the time it was signed. As you would presumably be presently located in the destination on which you were on vacation, so long as the Will complied with the laws of the jurisdiction where you were on vacation at the time it was signed it could theoretically later be admitted to probate in Ontario making your vacation Will a valid Will in Ontario.
In considering your potential vacation Will it would be wise to remember that just because you “can” do something doesn’t mean you “should”, with a vacation Will likely being in the same category as a vacation tattoo as something that should be very seriously considered and thought through before it is done.
Thank you for reading.
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.
The settling of an estate often involves probate, where the court grants someone authority to act as an estate trustee for the deceased. This procedure, set out in the Estates Act, also confirms that the deceased’s will is their last Will and Testament.
Estate trustees can file an application for an estate certificate (previously called “letters probate” or “letters of administration”) at the Superior Court of Justice, in the county or district office when the testator or intestate lived at the time of death. If that probate application is successful, the court issues a Certificate of Appointment of Estate Trustee, evidencing that the person named in the Certificate has the legal authority to deal with the estate and its assets.
To help people avoid common errors when completing this application, the Attorney General provides this guideline.
As our associate Sydney Osmar has noted, people can now file probate applications, supporting documents and responding documents by email to the Superior Court. Sydney’s blog post provides helpful information about sending these documents electronically, with the email address for each court location listed here.
Certificates of Appointment are not always required when it comes to an estate administration, but they may be if:
- the deceased died without a will;
- the will does not name an estate trustee;
- a financial institution requires proof of a person’s legal authority to receive the financial assets of the deceased; or
- the estate’s assets include land or buildings that do not pass to another person by right of survivorship.
One of the times probate will not be necessary is if the entire estate is held jointly, and all assets are passing to the surviving joint owner by right of survivorship. A scenario might include a husband and wife with a joint bank account and a jointly-owned home. If the husband died and left the entire estate to his wife, probate can be avoided since banks and financial institutions have no risk exposure.
The Estate Administration Tax, better known as probate fees, is charged on the value of the estate if a Certificate of Appointment is applied for and issued. Estate trustees must be able to substantiate the fair market value of the assets at the time of death through documentation, such as financial statements or valuations from appraisers.
Assets to include in determining the value of an estate include real estate in Ontario, bank accounts (including foreign banks), investments, vehicles and insurance (if proceeds are left to the estate).
Once the value of the entire estate is determined, you can then calculate the tax. If the estate is worth $50,000 or less, you do not have to pay any probate fees, although you still must file an Estate Information Return within 180 calendar days after the estate Certificate has been issued.
For estates valued over $50,000, the tax will be calculated as $15 for every $1,000 (or part thereof) of the value of the estate on top of the $50,000 exemption. For example, for an estate valued at $240,000, you would only pay tax on $190,000, resulting in $2,850 being owed to the Minister of Finance.
Use this tax calculator to determine the amount owing.
The probate process can be time-consuming and confusing, which is why many people rely on the services of a wills and estates lawyer to help guide them through the paperwork and procedures.
Please feel free to call me if I can assist you – and have a great day,
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:
Last Friday, February 12, 2021, the Attorney General for Ontario announced changes to the Estates Act that raise the limit of a “small estate” to $150,000.
“Right now, the process to apply to manage an estate in Ontario is the same, whether the estate is worth $10,000 or $10,000,000. The process can be time-consuming and costly, deterring people from claiming smaller estates – and that isn’t right,” said a press release.
The new regulation, introduced in the Smarter and Stronger Justice Act, does not come into effect until April 1, 2021, but will make it easier to file a probate application for small estates and removes the requirement for a security bond in many small estate probate applications.
Among the changes to simplify the probate process for small estates are 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 more guidance for applicants on the process to file a probate application for a small estate.
Estate administration tax is still applicable to the portion of the small estate that is larger than $50,000, but these changes to procedure represent a positive step for grieving families who might otherwise leave a small estate unclaimed.
It’s worth noting that banks and other financial institutions often can’t take instructions from an estate trustee unless probate has been granted. By raising the limit for small estates, and simplifying the probate procedure, many estates will be settled sooner and with fewer burdens or costly hurdles for grieving families.
Thanks for reading
Ian Hull and Daniel Enright
Re Crowley Estate, 2021 ONSC 582, raises an interesting question surrounding the potential impact of counsel missing a procedural deadline in association with a Notice of Objection to the issuance of a Certificate of Appointment (i.e. probate), and whether missing such a deadline is fatal to the Objector’s ability to generally proceed with a challenge to the Will.
The Notice of Objection process is governed by rule 75.03 of the Rules of Civil Procedure. It generally provides that at any time before the issuance of a Certificate of Appointment any individual who appears to have a financial in the estate may file a “Notice of Objection” to the issuance of a Certificate of Appointment. The impact of filing of the Certificate of Appointment is to in effect to pause the probate process, with the applicant Estate Trustee being required to vacate and/or deal with the Notice of Objection before probate can be issued. The process by which the Notice of Objection is generally dealt with is that upon being advised of the Notice of Objection the Estate Trustee is to serve a “Notice to Objector” upon the Objector in accordance with rule 75.03(4), which then provides the Objector with 20 days from the date on which they are served with the Notice to Objector to serve and file a “Notice of Appearance”. If the Notice of Appearance is served by the deadline, the matter proceeds to a motion for directions in accordance with rule 75.03(6), where the court would be asked to provide directions regarding how the objections that were raised are to be adjudicated before the court. If no “Notice of Appearance” is filed by the deadline the Notice of Objection is automatically vacated, and the probate application may proceed as if no Notice of Objection had been filed.
In Re Crowley Estate, the Objector filed a Notice of Objection to the issuance of probate, and was in turn served with a Notice to Objector by the Applicant. The date on which the Objector was served with the Notice to Objector was November 20, 2020, which would have resulted in a deadline of December 10, 2020 for the Objector to serve the Notice of Appearance. The Notice of Appearance was not served however by the Objector until December 15, 2020. The matter was directed by the Registrar to a Judge, who in turn asked the parties to make written submissions regarding the matter. The Applicant’s lawyer took the position that rule 75.03 was “unforgiving” with respect to its deadlines, and that as the Objector had missed the deadline to serve the Notice of Appearance the court was now required to proceed with the probate application as if no Notice of Objection had been filed. Objector’s counsel advised that the reason for the missed deadline was due to health related concerns surrounding COVID-19, appearing to note in any event that even if the Notice of Objection was vacated the Objector would be proceeding with a challenge to the validity of the Will, noting that the Objector had subsequently commenced a separate Application to address the concerns surrounding the validity of the Will on January 7, 2021.
The court ultimately extended the deadline for the Objector to file the Notice of Appearance under rule 3.02, which allows the court to extend any time prescribed by the rules on such terms as are just. In extending the deadline, Justice Boswell notes that the Objector clearly always intended to pursue the objection, and that there is no clear prejudice to allowing the extension. Perhaps interestingly however, although the comment does not appear to have played a decisive role in the final ruling, Justice Boswell references that even if the Certificate of Appointment was issued the Objector would likely have been at liberty to seek the return the Certificate of Appointment under rule 75.05, appearing to give credence to the Objector’s position that they would have been at liberty to proceed with their challenge to the validity of the Will regardless of the missed deadline for the Notice of Objection.
Thank you for reading.
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.
The reduced hours and filing capabilities of the court during the COVID-19 pandemic have raised some interesting questions surrounding the filing of probate applications. Although the court’s direction to file court materials by mail is likely of no concern for a majority of matters, as a probate application could contain the original executed copy of a Will as well as a potentially significant bank draft for any estate administration tax, you would likely be rightly hesitant to place such documents in the mail under the current circumstances for fear that they may be lost.
The potentially good news for those needing to file probate applications with the Toronto court is that it is our current understanding that the Toronto court is allowing probate applications to be filed in person at the court office daily between the hours of 10:00 am and 12:00 noon, and again from 2:00 pm to 4:00 pm. Although these filing capabilities and times are of course subject to change, at least for the time being those in Toronto appear to be able to file probate applications in person without having to concern themselves with the possibility of the application being lost in the mail. Those needing to file probate applications in jurisdictions outside of Toronto should check to see if they too are making an exception to allow probate applications to be filed in person and not by mail.
In the event that it does not appear that it will be possible to file the probate application in person, such that the probate application would likely need to be filed by mail, the individual wishing to file the probate application should seriously consider whether there is an urgent need to file the probate application or whether it could wait until the courts have fully re-opened. If you are advising a client in such a situation, you should clearly explain what would happen in the event that the original Will was lost, and that an application to prove a copy of the lost will would be necessary (together with the added time and expense). Although the presumption that the lost will was destroyed by the testator with an intention of revoking it could likely easily be overcome by the fact that the possession of the Will could be traced to after the testator’s death, there would still be added time and expense of needing to bring the lost will application.
In the event that the client does still decide to proceed with filing the probate application by mail, one way to potentially reduce some of the risk may be to have any probate fees paid by trust cheque from the law firm and not by bank draft. Although in the event that the application materials were lost in the mail the lost will application would likely still be required, at least the concern associated with losing an original bank draft (and potentially the associated funds) is lessened as a trust cheque should more easily be cancelled. Multiple notarial copies of the original Will should also likely be made prior to placing it in the mail.
Thank you for reading and stay safe and healthy.
In the past, we have written about whether an Estate must first obtain a Certificate of Appointment before issuing a statement of claim.
But what about an Estate that may be entitled to claim a portion of a court-approved settlement?
Over the past year, a number of court-approved class action settlement agreements involving deceased class members appear to have taken into account the cost and complexity of appointing an Estate Trustee.
The settlement agreement approved by the Federal Court in McLean v. Canada is the culmination of litigation concerning tragic, historic events in the lives of those who attended Indian Day Schools. These events include allegations of systemic abuse and mistreatment of children. The “class period” runs from January 1, 1920 until the date of closure or relinquishment of control by Canada of any particular day school or, that date on which the written offer of transfer by Canada was not accepted by the respective First Nation or Indigenous government.
The settlement approval noted that if a class member dies on or after July 31, 2007, their “Estate Executor” is still eligible to be paid the compensation to which the class member would have been entitled.
Similarly, the more recent settlement agreement approved by the Federal Court in Toth v. Canada addresses the claims of veterans who were in receipt of various benefits, including disability pension benefits, and had the disability pension amounts deducted from the other benefits which they received or were entitled to receive. The decision reads:
“Under the proposed settlement, which totals $100 million, every Class Member and the estates of Class Members who have passed away since the Certification Notice was published will receive a payment. Payments will be calculated and made promptly as the majority of Class Members are known and every effort will be made to ensure that all Class Members, or their estates, receive their payment, which will not be subject to income tax.”
If a proceeding has been commenced by an estate before probate has been issued, Rule 9.03 of the Ontario Rules of Civil Procedure offers some relief in stating that the proceeding shall be deemed to have been properly constituted from its commencement.
It is not always necessary for an estate trustee to obtain a Certificate of Appointment in order to administer an estate; however, in certain matters, an estate trustee may be required to obtain probate before being able to represent the estate, whether or not there is a valid Will. The Ontario Superior Court in Carmichael et al. v. Sharpley et al. has set out three circumstances in which probate is required:
- Third parties dealing with the executor may refuse to accept the authority of the Will and demand production of letters probate as authentication of that power…
- Proceedings involving the executor representing the estate as plaintiff or as defendant. It would seem that in such circumstances the court requires probate as an evidentiary matter…
- Where a foreign executor wishes to establish title to estate assets in Ontario he must have his letters probate resealed in Ontario or obtain ancillary grant letters probate. This requires that he first obtain probate in the primary jurisdiction.
Moreover, the Estates Act ensures that estate trustees named in a Certificate of Appointment of Estate Trustee have sole authority in respect of the estate:
“30. After a grant of administration, no person, other than the administrator or executor, has power to sue or prosecute any action or otherwise act as executor of the deceased as to the property comprised in or affected by such grant of administration until such administration has been recalled or revoked”
It will be interesting to see if the Courts will continue to take into consideration the necessity and of appointing an Estate Trustee in light of historic claims, and how third parties making efforts to award a portion of the settlement to the Estate will deal with the requirement for probate.
Thanks for reading!
It appears that the Ontario government is taking action to make it easier and more affordable for executors of modest estates to access the courts.
Where the value of an estate is relatively small, the cost of obtaining a Certificate of Appointment (otherwise known as “probate”) can be perceived as too expensive. As a result, an executor (“estate trustee”) of a small estate often administers the estate without the protection of probate. In some cases, people choose not to administer a small estate at all and abandon the assets altogether.
Foregoing probate may lead to roadblocks when administering an estate. Third parties (like banks and persons buying the deceased’s real or personal property) will often require that the estate trustee obtain a Certificate. Probate reassures these third parties of the estate trustee’s authority and protects third parties from liability, as it verifies that the person they are dealing with is authorized to deal with the estate’s assets.
In the past, we have blogged about the Law Commission of Ontario’s efforts on this issue, including the release of a questionnaire to Ontarians who have administered what they consider small estates.
It now looks like the provincial government is looking to address the issue as well. Attorney General Doug Downey recently introduced the Bill 161, Smarter and Stronger Justice Act. If passed, the Act is intended to improve how court processes are administered to make life easier for Ontarians.
Notably, one of the proposed amendments includes allowing for a simplified procedure to make it less costly to administer estates of a modest value.
Right now, the probate process for all estates in Ontario is the same, no matter the size of the estate.
The Smarter and Stronger Justice Act would make amendments to Ontario’s Estates Act to exempt probate applicants from the requirement to post a bond for small estates in certain cases.
Other proposed changes to the Estates Act include safeguards to protect minors and vulnerable people who have an interest in an estate, and to increase efficiency by allowing local court registrars to perform the required estate court records searches, rather than a central court registrar.
It will be interesting to see if the proposed changes will be passed, and how they may encourage more people to apply for probate and administer an estate of lower value.
Thanks for reading!