Appendix C: Questions for Consideration

Appendix C: Questions for Consideration2017-03-03T18:35:03+00:00

1.     Have you been involved in administering what you consider to be a small estate or estates? Briefly explain your experience.

2.     In your opinion, what is the maximum value that an estate can have and still be considered a “small” estate?

3.     Do you think that the cost of probating a small estate in Ontario is reasonable relative to its value? If not, what parts of the process are unreasonably costly?

4.     What difficulties tend to arise in obtaining probate specifically for small estates?  Please briefly explain the basis for your answer. (For example, handwritten or altered wills, difficulty obtaining affidavits from witnesses to a will, difficulty locating beneficiaries, difficulty valuing the assets, minor or incapable beneficiaries, family disputes, other)

5.     What difficulties tend to arise in administering small estates without probate?
a.     How difficult is it to get financial institutions or others to release the deceased’s assets?
b.     How difficult is it to file the deceased’s final tax return with the Canada Revenue Agency?

Please briefly explain the basis for your answer.

6.     Where financial institutions release small value assets without requiring probate, do you think that this increases the risk of the assets falling into the wrong hands? If so,
a.     How serious is this risk?
b.     Are you aware of cases where the assets of an estate have fallen into the wrong hands? Explain.

7.     Where financial institutions agree to release small value assets to an estate representative without probate,
a.     Should financial institutions be protected from liability?
b.     What standard of care should be expected of financial institutions before they are protected from liability?

8.     Currently, probate means that the will (if there is one) and the appointment of the estate representative undertaking to administer the estate have been approved by the court. Should some form of court approval be a required element of a small estate procedure?

9.     The South Australian Law Reform Institute (SALRI) has proposed an online searchable registry of probate applications as an alternative to court approval. (See page 40 above.) Would an online searchable registry be an appropriate model for a small estate procedure in Ontario? Why or why not?

10.  What should be the maximum value of a small estate eligible for a small estate procedure in Ontario? Should this amount be calculated based on the gross or net value of the estate?

11.  In some jurisdictions, there are two value limits set for a small estate procedure. One value limit establishes which estates are small enough to be eligible for the process. If those estates are later learned to have a higher value than originally thought, a second, slightly higher, value limit applies to determine whether or not the estate must then apply for full probate. Would this kind of dual value limit be suitable for an Ontario small estate procedure?

12.  Please identify any of the following characteristics that you think should make estates ineligible for a small estate procedure:
ð      There is a will
ð      There is no will
ð      Estate includes real property assets
ð      Beneficiaries who are minors or incapable
ð      Other characteristics – please specify

Please explain.

13.  Probate and small estate procedures both require estate representatives to provide a valuation of the estate. In some cases, banks are reluctant to release this information without probate.
a.     Do you see this as a problem in Ontario?
b.     Should Ontario have a mechanism requiring financial institutions to disclose before probate the value of the assets that they hold for a deceased?

14.  Federal authorities such as the Canada Revenue Agency are bound by privacy and other laws requiring them to deal only with legally authorized representatives of a deceased. How might an Ontario small estate procedure be designed in light of these requirements?

15.  Should the Public Guardian and Trustee be involved in small estate administration in Ontario? If so, how?

16.  Which of the current requirements for obtaining probate in Ontario should continue to be required under a small estate procedure?
ð      Affidavit of execution of will
ð      Notice to beneficiaries
ð      Notice to PGT or Children’s Lawyer where minor or incapable beneficiaries
ð      Public record of estate trustee
ð      Consent of beneficiaries entitled to majority of assets (where no will or no executor named)
ð      Administration bond
ð      Other – please specify

Which of the current requirements could be dropped? Please explain.

17.  Should the government and/or courts provide greater assistance to people without a lawyer who are applying for probate for a small estate?
a.     If so, what kind of assistance would be appropriate? (Telephone help line, duty counsel at court registry offices, service for having affidavits sworn, other)
b.     Would it be appropriate to charge a modest fee for these kinds of services?
c.      If so, would it be preferable to charge a set fee or a fee based on the value of the estate?

18.  This project is considering whether Ontario should create a simplified process for administering small estates.
a.     Do you think this would be a good idea?
b.     If so, which of the following options for small estate reform would be most effective? (Please read the description of these options at pages 54 to 58 above and then check those that you think would be most effective.):
ð Model A: Status Quo
ð Model B: Court-assisted or facilitated probate
ð Model C: Simplified court-sanctioned probate
ð Model D: Administration by statutory declaration
ð Model E:Public Guardian & Trustee’s election to administer
ð Model F: Informal administration
ð Other

Please explain your choice/choices.

19.  There are many interests engaged in the administration of small estates.
a.     In considering reform to the probate process, which of the following should the LCO be particularly concerned to protect:

ð The intentions of the deceased
ð The estate representative
ð Beneficiaries
ð Financial institutions
ð Creditors
ð Others – please specify

20.  Please explain briefly how the interests you have identified would benefit from reform of the probate process for small estates.

 

 

 

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