Small Estates Simplified Procedure

After considerable research and public consultation, The Law Commission of Ontario (“LCO”) released its final report for the Simplified Procedures for Small Estates Project on November 19, 2015.

The LCO’s mandate for this project was to recommend law reform measures to enhance and improve the estate administration procedure such that its current benefits would be more accessible to small estates with a gross value of up to $50,000.

After considering a range of alternatives to the court-based supervision that should be used in the small estates process in Ontario, the LCO ultimately concluded that a court-supervised model would be most appropriate in keeping with the protective function of the regular probate system. In this regard, it is recommended that amendments to Rule 74 of the Rules of Civil Procedure and the Estates Act should be amended to provide for a simplified small estate procedure which will result in the issuance of a Small Estates Certificate that will have the same legal effect as a Certificate of Appointment of Estate Trustee.

The only difference between a court-issued Small Estates Certificate and a Certificate of Appointment of Estate Trustee is that estate trustees pursuant to a Small Estate Certificate will only have the authority to deal with the estate assets listed in the application.

To determine whether an estate qualifies for access to the small estate process, the LCO recommends that the value of the estate be calculated in accordance with section 32(1) of the Estate Act and should include all assets belonging to the deceased at the time of death, including those discovered after the issuance of the Small Estate Certificate.

The LCO recommends that a formal application process which mirrors the current probate process should be adopted for small estates with the exception of some of the evidentiary requirements. For example, an applicant under the small estate process would not be required to file proof of the validity of a will and their legal entitlement to administer the estate. Instead, an application would simply be required to make a declaration to this effect. The only evidence required would include:

a copy of the death certificate;
a copy of the will if there is one; and
a form declaring that the application was sent to the beneficiaries, including the Ontario Public Guardian and Trustee and/or the Office of the Children’s Lawyer.
Applicants under the small estate process would also be required to send a copy of the application and an explanatory form to all known persons with an entitlement to a share of the estate, including the OPGT and/or the OCL. This must be done at least 30 days before filing the application. However, payment of security would not be a requirement of the application process.

The LCO also makes recommendations to the Ontario Government and the Ministry of the Attorney General with respect to amendments to the Estate Administration Tax Act and the development of an on-line filing system and paper filing procedures. Other recommendations include information guides specifically for unrepresented applicants with step-by-step instructions and public awareness campaigns to educate the public regarding the importance of making a will and appointing an estate trustee.

To find out more about the LCO’s recommendations and to read the full report visit  http://www.lco-cdo.org/en/small-estates-final-report