The laws around estate planning, as well as the administration of an estate after death, have undergone several changes in 2021. In response to the COVID-19 pandemic, changes were made to permit virtual witnesses of wills and powers of attorney. Originally, these measures were put into place temporarily to make the execution of these documents easier, however, they have since been made permanent. Other changes addressed the effects of marriage and separation on existing wills, as well as increasing the authority of courts to make minor changes to a will to validate it.
The province recently announced changes to the probate, or estate administration process, scheduled to come into effect January 1, 2022. In addition, changes came into effect earlier in the year which amended the process for probating a “small estate”. We will discuss the specifics of both of these changes below.
Simplifying the Probate Process in Ontario
Historically, the process of probating an estate, whether it was with a will or without, involved completing many forms. Rule 74 of Ontario’s Rules of Civil Procedure included 58 forms. While not all forms are required in every case, navigating the available forms to determine which were applicable to each case could be complicated for someone inexperienced in administering estates. In addition, the processes for probating an estate without a will (intestate) and with a will (testate) were notably different.
As part of the province’s effort to make a more streamlined probate process, the 58 forms are being consolidated and reduced to a total of 23. In addition, the forms themselves are expected to be easier to navigate, with larger fonts, fillable text, and simplified instructions.
The changes will also see the elimination of Rules 74.04 and 74.05, which currently set out the procedure for administering an estate with or without a will, and replacing them with one new Rule 74.04, which will address both situations. The new Rule 74.04 will also be modified to reflect the recent changes to the Succession Law Reform Act regarding marital status and its effect on an existing will.
Lastly, the new changes will attempt to better protect vulnerable beneficiaries, including minors and adults with capacity issues by requiring confirmation of service of a Notice of Application to the Office of the Children’s Lawyer or the Office of the Public Guardian and Trustee, when applicable.
Changes to the Administration of Small Estates
As of April 1st of this year, the process for administering a “small estate” was simplified. Before this change, there was a single administrative procedure, no matter the size of the estate. However, changes were made to simplify the process for small estates, which have been defined as estates with a value of $150,000 or less.
Under the new procedure, applicants may apply for a Small Estate Certificate, which grants the applicant the power to manage the distribution of the estate’s assets, whether or not there was a will. To qualify as an applicant, the person(s) must:
- Be named as an estate trustee in the deceased’s will;
- Be appointed as an estate trustee by a court order; or
- Qualify as an applicant under provincial legislation.
The applicant will need to apply for a surety bond in certain circumstances, which helps to ensure the Estate Trustee carries out their duties to the estate and its beneficiaries. In the case of a small estate, a bond will only be required in the following circumstances:
- The applicant is not a resident in Ontario, a province in Canada, or a Commonwealth country;
- There are minor or incapable beneficiaries to the estate and the deceased died intestate (without a will), OR the applicant is not named as an Estate Trustee in the will AND:
- The applicant is someone other than the deceased’s spouse, or
- The applicant is the deceased’s spouse but failed to petition the court for an order dispensing with the need for a bond.
Once the Small Estate Certificate is issued, it has the same effect as a traditional Certificate of Appointment of Estate Trustee. The Trustee, however, is only permitted to manage the assets listed in the Certificate. If the Trustee were to later discover additional assets of the estate which do not increase the total estate value to over $150,000, the Certificate can simply be amended to add the new assets. If the new assets do cause the estate to exceed $150,000, the Estate Trustee would then need to re-apply for a traditional Certificate of Appointment of Estate Trustee.
Contact Tierney Stauffer LLP in Ottawa, North Bay, and Eastern Ontario for Comprehensive Estate Planning, Administration, and Litigation Services
There have been several changes to the administration of estates proposed or implemented this year. It can be difficult for those tasked with probating an estate to know how to proceed. The knowledgeable will and estate lawyers at Tierney Stauffer LLP can help you navigate these new rules and help simplify the process by taking on much of the work for you.
We take a client-focused approach to our work, providing innovative guidance through the estate planning and administration processes. Our team also represents clients in estate litigation when disputes arise. We have extensive experience and will work to secure the results our clients need to move forward. Call us at 1-888-799-8057 or contact us online to set up a consultation with a member of our team.
