[1] A 2012 survey by CIBC found that 84% of Canadians with a will say that they have named a family member or friend as executor: Canadian Press, “Where There’s A Will, There Better Be A Qualified Executor”, Winnipeg Free Press, June 23, 2012, B13. Online:  http://www.winnipegfreepress.com/business/finance/where-theres-a-will-there-better-be-a-qualified-executor-160105215.html. In some cases, the testator or family prefers to hire a lawyer or a trust company to act as estate representative. This is financially feasible only for larger estates, typically those valued at more than $300,000.  In other cases, where no family or friend is available to act as estate representative, the Ontario Public Guardian and Trustee (PGT) may, as a last resort, undertake to administer the estate pursuant to the Crown Administration of Estates Act, R.S.O. 1990, c.C.47, s.1 [CAEA].

[2]The terminology used in estate administration is far from uniform. In this paper, an individual who has informally undertaken to administer an estate (that is, without probate or before probate is granted) will be referred to as the “estate representative”. If an estate representative obtains a Certificate of Appointment of Estate Trustee (COA) from the court formalizing his or her authority, he or she is referred to as the Estate Trustee (Estate Trustee with a Will where a will names the Estate Trustee as executor or Estate Trustee without a Will where there is no will or the will does not name the Estate Trustee as executor).

[3] In this paper, the more precise term, “COA”, is used in discussing the Ontario process specifically and the generic term “probate” is used to describe the process generally.

[4] Statute of Frauds, 29 Car. II, ch.3, par. 19 (1677). Pre-1677, probate for personal property was managed by ecclesiastical courts. There was no probate for land at that time: James Lindgren, “Abolishing the Attestation Requirement for Wills” (1989-1990) 68 N.C.L.Rev.  541, 551.

[5] Ontario Law Reform Commission (OLRC), Report on Administration of Estates of Deceased Persons (1991), 9.

[6] British Columbia Law Institute (BCLI), Interim Report on the Summary Administration of Small Estates, BCLI Report No. 40, December 2005, 2. John Langbein describes the functions of probate similarly although he includes the function of clearing title so that the deceased’s property becomes marketable again: John H. Langbein, “The Nonprobate Revolution and the Future of the Law of Succession” (1984) 97 Harvard Law Review 1108, 1117 [Langbein, “Nonprobate Revolution”].

[7] Martin is commenting on the U.S. probate system which is different from Ontario’s system in a number of significant respects. However, his critique is also generally applicable to probate systems on this side of the border: John H. Martin, “Reconfiguring Estate Settlement” (2009-2010) 94 Minn. L. Rev. 42 [Martin, “Reconfiguring”]. Also see Charles Dent Bostick, “The Revocable Trust: A Means of Avoiding Probate in the Small Estate?” (1968-1969) 21 U. Fla. L. Rev. 44 detailing the flaws of the probate system specifically in relation to small estates.

[8] Roscoe Pound, An Introduction to the Philosophy of Law 236 (1922), quoted in Lindgren, note 4, 557.

[9] In a 2012 address, John Langbein provided statistics on the astonishing total value of non-probate assets currently held by financial intermediaries in the United States and concluded that “there is no turning back, no possibility of proctoring a probate-centred system of wealth transfer on death.”: Langbein, “Major Reforms of the Property Restatements and the Uniform Probate Code: Reformation, Harmless Error, and Nonprobate Transfers” (2012) 38 ACTEC L. J. 1, 17 [Langbein, “Major Reforms”].

[10] Martin, “Reconfiguring”, note 7.

[11] Langbein describes these financial intermediaries as “functioning as free-market competitors of the probate system and enabling property to pass on death without probate and without will.” Financial intermediaries include life insurance companies, pension plan operators, commercial banks, savings banks, investment companies, brokerage houses and stock transfer agents: Langbein, “Nonprobate Revolution”, note 6, 1108.

[12] Stewart E. Sterk  & Melanie B. Leslie, “Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession”  (forthcoming 2014) 89 N.Y.U. L. Rev.  4.

[13] Langbein, “Nonprobate Revolution”, note 6, 1120-1125; John H. Martin, “Improving Michigan Estate Settlement” (2012) 29 T.M. Cooley L. Rev. 1, 18.

[14] Robert A. Stein & Ian G. Fierstein, “The Demography of Probate Administration” (1985) 15 U. Balt. L. Rev. 54, 106.

[15] Langbein, “Nonprobate Revolution”, note 4, 1116.

[16] Martin, “Reconfiguring”, note 7, 83, quoting from Stein & Fierstein, note 14, 105-106. Martin’s reasoning is similar to the cost/benefit analysis that supports the adoption of small estate procedures. Keep in mind, however, that the U.S. probate system is traditionally more court-intensive than Ontario’s system.

[17] Martin, “Reconfiguring”, note 7, 83.

[18] Catherine Curtis describes the case of a fraudulent executor in Texas, the experience of which led that State to introduce a notice requirement for beneficiaries: Catherine S. Curtis, “128A Notice Requirements: Adding to the Burden or Preventing Fraud for the Texas Probate System” (2009-2010) 16 Tex. Wesleyan L. Rev. 437.

[19] According to the Bennett Commission Report, 14 states already had small estates laws and feedback from these other states was that the procedure was in general use and was found to be useful and practical: New York (State) Temporary State Commission [Bennett Commission], Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates to the Governor and the Legislature, vol. II, 1963, 79.

[20] Bennett Commission, note 19, vol. I, 1962, 11.

[21]  Standish F. Medina, “The Philosophies of the Bennett Commission on Estates Underlying the EPTL and the SCPA” (1966-1967) 33 Brook. L. Rev. 414, 416.

[22] Trusts and Estates Section, The State Bar Association of California [TEXCOM], Update of Provisions of the Probate Code Pertaining to the Collection or Transfer of Small Estates Without Formal Probate Administration – Legislative Proposal (T&E-2010-08) (The State Bar of California, 2009), 5. Online: http://www.calbar.ca.gov/LinkClick.aspx?fileticket=ncHaz-_kOkk%3D&tabid=751.

[23] TEXCOM, note 22, 5.

[24] TEXCOM, note 22, 5.

[25] TEXCOM, note 22, 5.

[26] The Supreme Court of Canada has rejected the practice of assessing punitive damages as a ratio of compensatory damages: Whiten v. Pilot Insurance Co., 2002 SCC 18, para. 127.

[27] Paula A. Monopoli, American Probate: Protecting the Public, Improving the Process Boston (Northeastern University Press, 2003), x.

[28] Steven Seidenberg, “Plotting Against Probate: Efforts by Estate Planners, Courts and Legislatures to Minimize Probate Haven’t Killed It Yet” (2008) 94 A.B.A.J. 57.

[29] BCLI, note 6, 2.

[30] BCLI, note 6, 2.

[31] BCLI obtained these statistics from the Court Services Branch of the British Columbia Ministry of Attorney General. Similar statistics do not appear to be available in Ontario.

[32] Bennett Commission, note 19, 59.

[33] Ontario, Rules of Civil Procedure, R.R.O. 1990, Reg. 94 [Rules of Civil Procedure], Rule 1.04 (1.1).

[34] Hryniak v. Mauldin, 2014 SCC 7, para. 28.

[35] Ontario, Civil Justice Reform Project: Summary of Findings & Recommendations, Honourable Coulter A. Osborne, Q.C., November 2007, 134.

[36] British Columbia, Ministry of Justice, The Wills, Estates and Succession Act Explained, Part 6: Administration of Estates. Online: http://www.ag.gov.bc.ca/legislation/wills-estates-succession-act/pdf/Part6.pdf.

[37] For very small estates, funeral costs may exhaust the estate prior to probate. The Canada Pension Plan (CPP) has provided for this possibility. Where there is no estate or no executor has applied for the death benefit payable under CPP, the death benefit will be paid directly to the person who has paid or is responsible for funeral expenses: Service Canada, Death Benefit, online: http://www.servicecanada.gc.ca/eng/services/pensions/cpp/death-benefit.shtml. 

[38]The LCO will not necessarily conclude that a specialized probate process for estates of small monetary value is a viable option for Ontario. However, the intent “going in” is to develop an improved process specifically for these small estates.

[39] A value cut-off would be most appropriately set by regulation or policy rather than in legislation since the amount will necessarily change over time.

[40] This is the value limit in Oregon: Oregon Revised Statutes, s.114.515.

[41] Estate Administration Tax Act, 1998, S.O. 1998, c.34 [EATA].

[42] In Re Eurig Estate, the Supreme Court of Canada recognized the “practical compulsion” for an executor to apply for a COA in most cases stating, “[t]he fact that in some instances probate may be avoided does not lessen the fact that in Ontario letters probate are the rule in virtually all estate affairs”: Re Eurig Estate, [1998] 2 S.C.R. 565, para. 17.

[43] An estate representative who chooses to avoid probate takes the risk of being considered to be a trustee de son tort, that is, a person who is not appointed a trustee but who undertakes to administer an estate for the beneficiaries. Even though well-intentioned, a trustee de son tort becomes personally liable for any actions that would amount to a breach of trust if properly appointed a trustee: Donovan W.M. Waters, Q.C., Mark R. Gillen, Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012), 514-515.

[44] See Silver Estate v. Silver (2000) 35 E.T.R. (2d) 287 (S.C.J.) per Cullity J., paras. 3, 36.

[45] Trustee Act, R.S.O. 1990, c.T.