[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.23, ss. 47(1) [Trustee Act].

[46] Succession Law Reform Act, R.S.O. 1990, c.S.26, ss. 61(1) [SLRA]. Note that under ss. 61(2), the court may extend this limitation period in certain circumstances.

[47] SLRA, note 46.

[48] Rules of Civil Procedure, note 33.

[49] Rules of Civil Procedure, note 33, Rule 74, Form 74.4. There are variations of this form that address slightly different circumstances. The requirement to provide a valuation of the estate derives from s. 32 of the Estates Act, R.S.O. 1990, c.E.21 [Estates Act].

[50] Rules of Civil Procedure, note 33, Rule 74, Form 74.14. The hierarchy of persons entitled to apply to be Estate Trustee without a Will is set out in s.29 of the Estates Act, note 49.

[51] The bond requirement is contained in s.35 of the Estates Act, note 49. Under s.37 of the Act, the bond is required to be “in a penalty of double the amount under which the property of the deceased has been sworn”.

[52] Rules of Civil Procedure, note 33, Rule 74.13 and EATA, note 41, Schedule, ss.2, 3.

[53] EATA, note 41, Schedule, s.2.

[54] Rules of Civil Procedure, note 33, Rule 74.14.

[55] EATA, note 41, ss. 2(2).

[56] Although the value of the estate does determine the estate administration tax payable.

[57] This is especially the case since testators with large value estates may have more resources to engage in careful estate planning which reduces the size and value of the estate on the testator’s death. In other words, the testator is able to pay to eliminate any complications with the estate while still alive.

[58] See Trustee Act, note 45, s. 61.

[59] Notice of an application for a COA must be served on the PGT in certain circumstances under Rules 74.04(6) and 74.05(4) of the Rules of Civil Procedure, note 33.

[60] Public Guardian& Trustee  Act, R.S.O. 1990, c. P.51, s.7 [PGTA].

[61] CAEA, note 1, s.1.

[62] CAEA, note 1, s.4. The PGT does have statutory authority to release property in its possession up to a value of $20,000 to heirs of the estate without a COA: PGTA, note 60, ss.10(3).

[63] Rules of Civil Procedure, note 33, Rule 74.05(1)(c), Form 74.19.

[64] Ontario Office of the Public Guardian and Trustee [OPGT], Estates Administration: The Role of the Public Guardian and Trustee, 2012. Online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/estatesadmin.pdf.

[65] OPGT, note 64, 3.

[66] As discussed above, estate assets are those owned solely by the deceased and do not have another designated beneficiary.

[67] Bank Act, S.C. 1991, c.46, s.460 [Bank Act].

[68] Credit Unions and Caisses Populaires Act, 1994, S.O. 1994, c.11, s.42 [CUCPA].

[69] O. Reg. 237/09, s.7.

[70] In this project, a financial institution is broadly defined to include banks, credit unions, insurance companies, investment dealers, mutual fund dealers and others holding the assets of a deceased person.

[71] Bank of Canada Business Rules, Canada Savings Bonds. Online: http://www.csb.gc.ca/canada-savings-bonds-program/services-bond-owners/transferredeem-from-a-deceased-owner-all-provinces-except-quebec/.

[72] For example, banks are required to comply with the obligations set out in Schedule 1 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, ss.5(1) [PIPEDA]. See, in particular, Principle 4.3.6.

[73] Land Titles Act, R.S.O. 1990, c.L.5, s.124.

[74] Director of Land Registration and Director of Titles, Letter to all Land Registrars, April 1, 1993. Online: http://www.gov.on.ca/en/information_bundle/land_registration/content/ONT06_024516.html.

[75] Kate Murray, Director of Titles, Memo To Land Registrars Re: Estate Conveyancing, October 30, 2000. Online: http://files.ontariogovernment.ca/em200003.pdf.

[76] Registry Act, R.S.O. 1990, c.R.20, ss. 53(a).

[77] Estates Administration Act, R.S.O. 1990, c.E.22, ss. 9(1) [EAA].

[78] Business Corporations Act, R.S.O. 1990, c.B.16, ss. 67(8).

[79] Rules of Civil Procedure, note 33, Rule 74.

[80] SLRA, note 46, s. 4.

[81] See Monique Charlebois, “The Estate Trustee’s Duty to Search for Heirs” (2003-2004) 23 E.T.P.J. 209, 216-217, 221.

[82] Also see Estates Act, note 49, ss. 35-37.

[83] Estates Act, note 49, s. 6.

[84] See Ian Hull, C.S., Rhys Newman, “Applications for Certificates of Appointment: Tips and Traps”, Practice Gems: Probate Essentials 2013, September 19, 2013, 3-18-3-20.

[85] Administration of Estates Act, S.S. 1998, c.A-4.1, s. 9; Administration of Estates Regulations, R.R.S. c.A-4.1 Reg. 1, s. 8.2. Also see Rule 16-36 of Saskatchewan’s 2013 Queen’s Bench Rules.

[86] The Court of Queen’s Bench Surrogate Practice Act, C.C.S.M. c. C290, s.47; Manitoba Court of Queen’s Bench Rules, Rule 74.15 and Forms 74BB and 74CC.

[87] Public Trustee Act, S.A. 2004, c.P-44.1, s. 13; Public Trustee General Regulation, A.R. 241/2004, s.2 and Form 1.

[88] Public Trustee Act, S.A. 2004, c.P-44.1, s. 16; Public Trustee General Regulation, A.R. 241/2004, s.3 and Form 2. This provision was explained during second reading of the Public Trustee Act (Bill 19) in 2004. Mr. Hancock stated: “The bill also broadens the scope of an expeditious procedure that applies to estates of modest monetary value. Generally, the Public Trustee must apply to the court for a grant of administration to acquire the right to administer an estate, but if the deceased has not left a will and the estimated value of the estate is below a prescribed amount, another procedure is available. Instead of applying to the court for a grant of administration, the Public Trustee may file an election to administer the estate. The bill extends this procedure to cover smaller estates where the deceased has left a will.”

[89] Public Trustee Act, S.A. 2004, c. P-44.1, s. 15.

[90] Administration of Estates Act, S.S. 1998, c. A-4.1, s. 44.1; Administration of Estates Regulations, R.R.S. c. A-4.1, Reg. 1, s. 8.3.

[91] Probate Court Act, R.S.N.B. c. P-17.1, s. 20. The Law Reform Notes published by the New Brunswick Department of Justice indicate that, in 1995/1996, New Brunswick considered the possibility of a small estate process specifically for intestacies. No resolution of this issue is evident from the materials available online: Legislative Services Branch, Department of Justice, Law Reform Notes, Issue 5, November 1995 and Issue 6, June 1996.

[92] Public Trustee Act, R.S.N.W.T. 1988, c. P-19, s. 26.

[93] Public Trustee Act, R.S.N.S. 1989, c. 379, s. 16.

[94] The Commission noted that approximately 70% of deaths in Nova Scotia did not lead to a formal grant of probate: Law Reform Commission of Nova Scotia, Final Report: Probate Reform in Nova Scotia, March 1999, 16, 40-42.

[95] Administration of Estates Act, R.S.A. 2000, c. A-2, s. 19.

[96] Estate Administration Act, S.A. 2014, c. E-12.5, not yet in force [EAA (Alta.)].

[97] Administration of Estates Act, S.S. 1998, c. A-4.1, s.7; Administration of Estates Regulations, R.R.S. c. A-4.1 Reg. 1, s. 8.1.

[98] Estates Act, note 49, s.51, repealed by Tax Credits and Revenue Protection Act, 1998, S.O. 1998, c.34, ss. 63(2).

[99] To be accurate, B.C. no longer has a small estate procedure after March 31, 2014. Prior to this date, B.C.’s Estate Administration Act, R.S.B.C. 1996, c.122, s.20 contained a provision intended to facilitate the administration of estates worth less than $25,000. However, this was repealed on March 31, 2104 when the new Wills, Estates and Succession Act was brought into force: Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA].

[100] WESA, note 99.

[101] BCLI, note 6.

[102] Supreme Court Civil Rules, B.C. Reg. 168/2009, Part 25 – Estates [B.C. Probate Rules].

[103] BCLI, note 6.

[104] BCLI, note 6, 26.

[105] BCLI, note 6, 52.

[106] BCLI, note 6, 27-28.

[107] Grayson M.P. McCouch, “Probate Law Reform and Nonprobate Transfers” (2008) 62 U. Miami L. Rev. 757, 758; Karen Sneddon, “Beyond the Personal Representative: The Potential of Succession Without Administration” (2008-2009) 50 S. Tex. L. Rev. 449, 459-460.

[108] Sneddon, note 107, 460-461.

[109] Perry O. Hooper, “Small Estate Law for Alabama” (1973-1974) 4 Cumb.-Samford L. Rev.  440, 441.

[110] Only about 20 states have adopted the Uniform Probate Code (UPC) in full but it is also influential in the remaining states: John H. Martin, “Non-Judicial Estate Settlement” (2012) 45 U. Mich. J. L. Reform 965, fn 1 [Martin, “Non-Judicial”].

[111] Lawrence H. Averill, Jr. & Mary F. Radford, Uniform Probate Code and Uniform Trust Code in a Nut Shell, 6th ed., West, 2010, 321-322.; Richard V. Wellman, Chief Reporter of the Uniform Probate Code Project, National Conference of Commissioners on Uniform State Laws, “The Uniform Probate Code: A Possible Answer to Probate Avoidance” (1968-1969), 44 Ind. L. J. 191, 199.

[112] Martin, “Non-Judicial”, note 110, 970.

[113] Martin, “Non-Judicial”, note 110, 970, citing Mark T. Johnson, “Comment, A ‘Simple’ Probate Should Not Be This Complicated: Principles and Proposals for Revising Wisconsin’s Statutes for Probate Summary Procedures” (2008) Wis. L. Rev. 575, 576-577.

[114] Sneddon, note 107, 485-486.

[115] The UPC defines “successors” as “persons, other than creditors, who are entitled to property of a

decedent under his [or her] will or this [code]”: Uniform Probate Code, s. 1-201 (2010) [UPC].

[116] UPC, note 115, ss. 3-312 – 3-322.

[117] UPC, note 115, ss. 1-201(49), 3-1201, 3-1202.

[118] Cal. Prob. Code, s. 13100; Or. Rev. Stat., s.114.515. In both these states, this threshold amount applies to real property as well as personal property.

[119] Martin, “Non-Judicial”, note 110, 969.

[120] Martin, “Non-Judicial”, note 110, 968.

[121] UPC, note 115, ss. 3-1203, 3-1204. The statutory entitlements are set out at ss. 2-402 (homestead allowance), ss. 2-403 (exempt property) and ss.2-404 (family allowance). This is loosely analogous to ss.36(2) of Ontario’s Estates Act, note 49, dispensing with the bond requirement where the surviving spouse is estate trustee without a will and the net value of the estate does not exceed her preferential share.

[122] Martin, “Non-Judicial”, note 110, 969.

[123] BCLI, note 6.

[124] Law Commission, Intestacy and Family Provision Report, Law Com No. 331 (London: The Stationary Office, 2011), 95. Online: http://lawcommission.justice.gov.uk/docs/lc331_intestacy_report.pdf. 

[125] Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 20th ed., Sweet & Maxwell, 2013, paras. 6-07 to 6-16.

[126] Administration of Estates (Small Payments) Act 1965 (U.K.), c.32, Schedules.

[127] Law Commission, note 124.

[128] Law Commission, note 124, 21.

[129] Law Commission, note 124, 89.

[130] Law Commission, note 124, 96. For more detail on the consultation responses, see Law Commission, Intestacy and Family Provision Claims on Death, Analysis of Consultation Responses, Consultation Paper 191 (Responses), December 14, 2011, 107-110. Online: http://lawcommission.justice.gov.uk/docs/cp191_intestacy_responses.pdf.

[131] The Non-Contentious Probate Rules working group put out draft rules for the consultation process during the summer of 2013. As of August 2014, these rules have not yet been adopted.

[132] Law Commission, note 124, 96.

[133] Law Commission, note 124, 97.

[134] As of August 2014.

[135] Public Trustee Act, 1906 (U.K.), 6 Edw. VII, c.55, ss. 2, 3.

[136] Williams, Mortimer and Sunnucks, note 125, para. 3-19.

[137] South Australian Law Reform Institute (SALRI), Small Fry: Administration of Small Deceased Estates and Resolution of Minor Succession Disputes, Issues Paper 5, January 2014, 11-12 [SALRI Paper]. Online: http://www.law.adelaide.edu.au/research/law-reform-institute/documents/small_fry_IP5_final.pdf.  

[138] Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General, Report 65 (2009), volume 3 [National Committee Report]. Online: http://www.qlrc.qld.gov.au/publications/QLRC%20Report%2065%20Volume%203.pdf.

[139] New South Wales Law Reform Commission (NSWLRC), Uniform Succession Laws: Administration of Estates of Deceased Persons, Report 124, December 2009 [NSWLRC Report]. Online: http://www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/r124.pdf. 

[140] Victorian Law Reform Commission (VLRC), Succession Laws Report, August 2013 [VLRC Report]. Online: http://www.lawreform.vic.gov.au/sites/default/files/Succession_Laws_final_report.pdf.

[141] SALRI Paper, note 137.

[142] National Committee Report, note 138, 97.

[143] National Committee Report, note 138, 95-96. The Committee recommended that the election procedure be available to the public trustee, trustee companies and legal practitioners only where they would otherwise be entitled to obtain a formal grant.

[144] National Committee Report, note 138, 105, 115.

[145] National Committee Report, note 138, 105.

[146] National Committee Report, note 138, 106.

[147] VLRC Report, note 140, 204-205.

[148] Victoria’s State Trustees is a government owned but privately operated organization that offers public trustee services under a Community Services Agreement with the government, as well as some commercial services: State Trustees, State Trustees Annual Report 2013, Victoria, Australia, 4. Online: https://www.statetrustees.com.au/annual-report/annual-report-2013.

[149] VLRC Report, note 140, 206.

[150] Administration and Probate Act, 1958 (Vic.), s.71.

[151] VLRC Report, note 140, 190.

[152]Supreme Court of Victoria, Grants of Probate or Administration for Small Estates. Online: http://www.supremecourt.vic.gov.au/home/forms%2c+fees+and+services/wills+and+probate/grants+of+probate+or+administration+for+small+estates.

[153] Administration and Probate Act, 1958 (Vic.), s.78.

[154] VLRC Report, note 140, 190.

[155] VLRC Report, note 140, 190-193.

[156] VLRC Report, note 140, 191.

[157] VLRC Report, note 140, 193-195.

[158] National Committee Report, note 138, 151.

[159] National Committee Report, note 138.

[160] SALRI Paper, note 137, 13.

[161] National Committee Report, note 138, 157; VLRC Report, note 140, 196-198.

[162] National Committee Report, note 138, 142.

[163] National Committee Report, note 138, 161,165.

[164] VLRC Report, note 140, 200.

[165] VLRC Report, note 140, 200.

[166] Probate fees vary dramatically across Canada. In 2013, a $10,000 estate would have had to pay probate fees as follows: $250 (Ontario), $85 (Newfoundland), $70 (Nova Scotia), $65 (Quebec), $25 (Alberta), $0 (B.C.): Lynne Butler, “What Does Probate Really Cost?”, Estate Law Canada, April 2010, updated August 27, 2013. Online: http://estatelawcanada.blogspot.ca/2010/04/what-does-probate-really-cost.html.

[167] The courts have traditionally been the mechanism for determining who has authority to administer a deceased’s estate. The first Court of Probate was introduced in Upper Canada in 1793, only one year after the new province was established. Since that time, legislative reform has been largely directed at the type of evidence necessary to establish the authenticity of a will or the authority of an estate representative and the procedural requirements involved in the appointment of an estate trustee: OLRC, note 5, 9.

[168] Models reducing or eliminating court involvement from small estate administration are designed as a compromise to address this reality.

[169] Alberta Law Reform Institute (ALRI), Estate Administration, Final Report 102, August 2013, 73.

[170] ALRI, note 169, 73.

[171] EAA (Alta.), note 96.

[172] EAA (Alta.), note 96, s.10.

[173] EAA (Alta.), note 96, s.8.

[174] Averill & Radford, note 111.

[175] SLRA, note 46, s. 45.

[176] O.Reg 54/95, s.1.

[177] Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 51 [CLRA].

[178] PGTA, note 60, ss. 10(3).

[179] VLRC Report, note 140, 192.

[180] These tend to be informal procedures allowing for the collection of estate assets by affidavit with little or no involvement of the court.

[181] See VLRC Report note 140, 207.

[182] See, for example, PIPEDA, note 72.

[183] B.C. Probate Rules, note 102, Rules 25-4, 25-8, Form P18.

[184] ALRI, note 169, 68-71.

[185] In Ontario, these laws include PIPEDA, note 72.

[186] Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.)), s. 241(1).

[187] See, for example, Public Trustee Act, R.S.N.S. 1989, c.379, s.16 (less than $25,000); Administration of Estates Act, S.S. 1998, c.A-4.1,  s.44.1 (less than $25,000); Probate Court Act, R.S.N.B., c. P-17.1, s.20 (less than $3000); Public Trustee Act, R.S.N.W.T. 1988, c.P-19, s. 26 (less than $10,000).

[188] A simplified procedure under Rule 76 of the Rules of Civil Procedure, note 33, is available for claims between $25,000 and $100,000. Claims under $25,000 are heard in Small Claims Court. On the difficult balance to be struck between access and justice in small claims court, see Shelley McGill, “Small Claims Court Identity Crisis: A Review of Recent Reform Measures” (2010) 49 C.B.L.J. 213, 217-219.

[189] PGTA, note 60, ss. 10(1).

[190] PGTA, note 60, ss. 10(3), 10(4).

[191] CLRA, note 177, s.51.

[192] Estates Act, note 49, s. 35 (no will) and s.6 (will exists but executor resides outside the Commonwealth).

[193] See, for example, Ontario Bar Association, Modernizing Requirements for Bonding of Estate Trustees, Submission to the Ministry of the Attorney General, April 2012, online: http://www.oba.org/CMSPages/GetFile.aspx?guid=e90ef4b5-d3a8-45cf-98ac-90f0c5b7e2bb.

[194] Estates Act, note 49, s.37.

[195] WESA, note 99, s.128.

[196] For example, where there is a will, the following documents and items must be filed with the Estate Registrar of the Ontario Superior Court of Justice: the original will; the original codicil(s), if any; Affidavit of Execution of Will (Form 74.8); Affidavit(s) of Execution of Codicil(s), if one or more codicils exist (Form 74.8); Application for Certificate of Appointment of Estate Trustee with a Will (Form 74.4); Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will (Form 74.7); Affidavit of Service of Notice (Form 74.6); estate administration tax; and a Certificate of Appointment of Estate Trustee with a Will (Form 74.13).

[197] The Ontario Ministry of Attorney General’s Estates FAQ website is relatively easy to find (a Google search for “Ontario probate” rendered the site in the first result) and is available in both French and English.

[198] Ontario, Court Services, “Rules of Civil Procedure Forms”. Online: http://www.ontariocourtforms.on.ca/english/civil/.

[199] Ontario, Ministry of the Attorney General, “Avoid Common Errors in Applying for a Certificate of Appointment of Estate Trustee”. Online: http://www.attorneygeneral.jus.gov.on.ca/english/estates/avoiding_common_errors.pdf. See generally, Ontario, Ministry of the Attorney General, “Frequently Asked Questions About Estates”. Online: http://www.attorneygeneral.jus.gov.on.ca/english/estates/estates-FAQ.asp#s1.

[200] Law Society of Upper Canada (LSUC), “How-To Briefs”. Online: http://www.lsuc.on.ca/with.aspx?id=2147490949.

[201] New York Surrogate’s Court Procedure, N.Y. SCP., Art. 13, §§ 1301, 1302.

[202] See New York Surrogate’s Court, “Surrogate’s Court Small Estate Affidavit Program”, New York CourtHelp. Online: http://www.nycourthelp.gov/diy/smallestate.html. The link appears in the top right-hand corner of the homepage. The link is somewhat misleading, however, because it appeals only to Spanish speakers.

[203] New York Surrogate’s Court, “Frequently Asked Questions – DIY Forms”, New York CourtHelp. Online: http://www.courts.state.ny.us/courthelp/faqs/guidedInterview.html#q13.

[204] See Barry Corbin, “Estate Administration Tax Audit & Verification – A New World” in LSUC, 15th Annual Estates & Trusts Summit, 2012.

[205] WESA, note 99.

[206] VLRC Report, note 140, 190-192.

[207] BCLI, note 6, 33-35.

[208] British Columbia Ministry of Justice, Explanation of WESA, Part 6, Division 2, Small Estate Administration. Online: http://www.ag.gov.bc.ca/legislation/shareddocs/wesa/Part6.pdf.

[209] SALRI Paper, note 137, 41.

[210] SALRI Paper, note 137, 41-42.

[211] As reported by a law firm in Manchester, England: Latimer Lee LLP, “Is a Grant of Probate Required?” October 9, 2012. Online: www.latimerlee.com/grantofprobaterequired.




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