[1] “Probate” is the commonly understood term for the court-supervised process that establishes the legal authority of an estate representative to administer the estate. In Ontario, Rule 74 of the Rules of Civil Procedure adopts the specialized term Certificate of Appointment of Estate Trustee with or without a will (COA): Ontario, Rules of Civil Procedure, R.R.O. 1990, Reg. 94 [Rules of Civil Procedure]. However, the term “probate” continues to be used informally: see, for example, Chris Markou, “To Probate or Not to Probate? – That is the Question”, Your First Estate Administration, Ontario Bar Association (May 29, 2014), 2. One of the goals of this project is to improve accessibility to the probate process for small estates and an important aspect of accessibility is the use of plain language terminology. For this reason, the LCO generally uses the term “probate” throughout the Report. The term “COA” is used when referring to the specific procedures set out in Rule 74. In chapter VII the LCO makes recommendations designed to simplify probate for estate representatives who are not represented by a lawyer. One of these recommendations is to eliminate from the Rules convoluted and obscure terms such as “Certificate of Appointment of Estate Trustee with or without a will”.

[2] There are several terms used to describe the person acting on behalf of an estate. For the purpose of this Report, “estate representative” is a generic term referring to anyone who is representing an estate in fact, whether or not a COA has been issued. Once a COA has been issued, the representative is known as the “estate trustee”. An “executor” or “executrix” is an estate representative who has been named by the testator in his or her will. An executor may or may not file for probate and become an estate trustee.

[3] What is or should be considered a small estate for the purpose of a simplified process is a foundational issue in this project and is addressed in chapter III. We conclude that a small estate eligible for a small estates process should be worth no more than $50,000. The phrase “small estate” is used throughout this Report to refer to this definition.

[4] A $5,000 value limit applies in Ohio for filing for a Summary Release of Administration where the applicant is not the deceased’s spouse: Ohio Revised Code, §2113.031, online: Ohio Law and Rules, http://codes.ohio.gov/orc/2113.031. A $275,000 value limit applies in Oregon’s small estates procedure, consisting of not more than $75,000 in personal property and $200,000 in real property: Oregon Revised Statutes, §114.515, online: Oregon Laws.org, http://www.oregonlaws.org/ors/114.515.  

[5] Probate is an archaic area of law which is arguably ripe for a comprehensive overhaul. According to a 2013 blog, probate reform has, to date, been “tentative and piecemeal”. The post suggests that probate should require no more than a few simple, user-friendly forms and it challenges reformers to redesign the process for efficiency and plain language without compromising the legal protection afforded to citizens: Lloyd Duhaime, Protecting the Dead From the Undead: Wills and Probate Law Reform, Duhaime.org, LawMag (November 11, 2013), online: http://www.duhaime.org/LawMag/LawArticle-1594/Protecting-the-Dead-From-the-Undead-Wills-and-Probate-Law-Reform.aspx.

[6] Trustee Act, R.S.O. 1990, c.T.23 [Trustee Act], s.47(1).

[7] Succession Law Reform Act, R.S.O. 1990, c.S.26 [SLRA], s.61.

[8] Christine M. Hakim, Balancing Accessibility and Procedural Protection in a Small Estates Probate Procedure in Ontario, Prepared for the Law Commission of Ontario (December 2014), 5, online: http://lco-cdo.org/en/Small-Estates-Commissioned-Paper-Hakim-2015.

[9] Duhaime, note 5.

[10] It is questionable how important the probate system is in fact in preventing fraud. During the consultations, consultees identified very few examples of fraud occurring as a result of the failure to obtain probate.

[11] Estate Administration Tax Act, 1998, S.O. 1998, c.34, Schedule [EATA], s.2.

[12] Interviews with several financial institutions. Also see Monteiro v. Toronto Dominion Bank, 2008 ONCA 137 [Monteiro], para. 55, online: http://www.canlii.org/en/on/onca/doc/2008/2008onca137/2008onca137.html?autocompleteStr=monteiro%20&autocompletePos=3.

[13] Law Commission of Ontario, Simplified Procedures for Small Estates: Consultation Paper (September 2014) [LCO, Small Estates Consultation Paper], 7-12. Online: http://lco-cdo.org/en/small-estates-consultation-paper.

[14] Written submission to the LCO from the Ontario Bar Association, Trusts and Estates Section (OBA) (April 2, 2015) [OBA 2015 submission].

[15] Other stakeholders also recognized that the role of probate is more complex and holds benefits for small estates in addition to the fees and paperwork involved.

[16] Questionnaire response from individual estate representative (January 20, 2015).

[17] This has changed with the introduction of the audit and verification regulation earlier this year. Now an Estate Information Return is filed with the Ministry of Finance: Information Required Under Section 4.1 of the Act, O. Reg. 310/14 [EATA Regulation].

[18] In Re Eurig Estate, the Supreme Court held that probate fees, the precursor to Ontario’s estate administration tax, were a tax rather than a fee specifically because they were intended to defray the costs of court administration in general and were not simply to offset the costs of granting probate: Re Eurig Estate, [1998] 2 S.C.R. 565 [Eurig], para.17.

[19] Norman F. Dacey, How to Avoid Probate (New York: Crown Publishers, 1965). Revised editions of Dacey’s book were published into the 1990s.

[20] See, for example, Tim Cestnick, “Where there’s a will: How to minimize probate fees”, Tax Matters

The Globe and Mail (August 1, 2011; updated September 6, 2012). The continued popularity of estate planning to avoid probate was confirmed in the LCO’s interviews with practitioners and representatives from financial institutions.

[21] Rules of Civil Procedure, note 1, Rules 75.01 – 75.05.

[22] Rules of Civil Procedure, note 1, Rule 74.

[23] Rules of Civil Procedure, note 1, Rule 74.12.

[24] Rules of Civil Procedure, note 1, Rule 74.14.

[25] LCO interview with Ministry of the Attorney General (MAG) representative (July 13, 2015).

[26] Rules of Civil Procedure, note 1, Rule 74.04.

[27] There are a number of different requirements under Rule 74 intended to respond to a range of circumstances. These can be bewildering for an unsophisticated estates representative. Only the core requirements are noted here.

[28] As of January 1, 2016, an amendment to Rule 74.04 will require that the applicant also file proof of death with the application: O. Reg. 193/15, ss.9(1).

[29] As of January 1, 2016, an amendment to Rule 74.05 will require that the applicant also file proof of death with the application: O.Reg. 193/15, s.10.

[30] EATA, note 11, s.3.

[31] EATA Regulation, note 17.

[32] The Rules provide for a passing of accounts but, in practice, beneficiaries often consent to waive this requirement, especially where the estate is small: Rules of Civil Procedure, note 1, Rules 74.16 – 74.18.

[33] EATA, note 11, s.2.

[34] Barry S. Corbin, “Estate Administration Tax – The Nightmare Begins”, (2011) 29:4 Deadbeat, Ontario Bar Association Trusts and Estates Section Newsletter; Barry Corbin, “Estate Administration Tax Audit & Verification – A New World” in LSUC, 15th Annual Estates & Trusts Summit (2012) [Corbin, New World]; Barry Corbin, “What’s Wrong with the Estate Administration Tax Act, 1998 and How to Fix It”, 17th Annual Estates and Trusts Summit, LSUC (November 3, 2014) [Corbin, What’s Wrong].

[35] Michael McKiernan, “The Going Rate: Canadian Lawyer’s 2014 Legal Fees Survey Shows Lawyers Split on Whether to Hike Fees” Canadian Lawyer (June 2014) 33, 37. The article notes that the maximum amount of legal fees for probate reported in Ontario was $4,745. The minimum was $1,356. Clearly, estate representatives of estates worth less than $1,356 or thereabouts are not seeking legal services.

[36] EATA, note 11, and EATA Regulation, note 17.

[37] LCO interview with urban estates practitioner (July 22, 2015).

[38] Examples taken from questionnaire responses from individual estate representatives (October 14, 2014 and January 16, 2015).

[39] McKiernan, note 35, 34.

[40] Probate fees for a $100,000 estate in selected Canadian provinces are as follows: Ontario – $1,000 (EATA, note 11, s.2), British Columbia – $850 (Probate Fee Act, S.B.C. 1999, c.4, s.2), Alberta – $275 (Surrogate Rules, Schedule 2, A.Reg. 130/95 as amended), Nova Scotia – $1002.65 (Probate Act, R.N.S. 2000, c.31, s.87), Quebec (non-notarial wills) – $105 (Québec, What To Do In the Event of Death, online: http://www4.gouv.qc.ca/EN/Portail/Citoyens/Evenements/deces/Pages/faire-verifier-testament-tribunal.aspx).   

[41] John H. Martin, “Reconfiguring Estate Settlement” (2009) 94 Minnesota Law Review 42.

[42] Written submission to LCO from Blair L. Botsford, botsfordLAW (December 2, 2014) [Botsford Submission].

[43] LCO Focus Group No. 1, estate practitioners in the GTA.

[44] Rules of Civil Procedure, note 1, Rule 76 [Simplified Procedure].

[45] Several stakeholders noted the $25,000 jurisdictional limit of the Ontario Small Claims Court as influential in their opinion: Small Claims Court Jurisdiction, O. Reg. 626/00, as amended [Small Claims Court Regulation], under the Courts of Justice Act, R.S.O. 1990, c. C.43 [CJA].

[46] Questionnaire response from individual estate representative (December 17, 2014).

[47] Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC  59 [Trial Lawyers v. BC].

[48] Trial Lawyers v. BC, note 47, paras. 45-47.

[49] LCO, Small Estates Consultation Paper, note 13, 14.

[50] Wills, Estates and Succession Act, S.B.C. 2009, c.13 [WESA]. WESA came into force in March 2014.

[51] British Columbia Law Institute (BCLI), Interim Report on the Summary Administration of Small Estates, BCLI Report No. 40 (December 2005), online: http://www.bcli.org/sites/default/files/Summary_Administration_Small_Estates_Interim_Rep.pdf.

[52] The small estate declaration provisions were included in WESA and even though the government has chosen not to bring them into force at the moment, it has reserved the possibility of introducing a small estates declaration in the future: WESA, note 50, Part 6, Division 2, ss.109-120 [not in force].

[53] A contextual distinction between the probate system in B.C. and that in Ontario is that B.C. probate fees are only payable by estates worth more than $25,000. B.C. financial institutions will often use this figure as a basis for releasing assets without probate. According to one B.C. commentator, financial institutions may incorrectly assume that since estates worth less than $25,000 are not required to pay fees, they are not subject to probate at all. In Ontario, estate administration tax does not apply to estates worth less than $1,000, with the result that financial institutions are less likely to assume that probate is not required.

[54] See, for example, International Claim Association Law Committee (ICALC), Small Estate Administration 50-State Survey, 2008, online: www.claim.org/documents/lawsurvey.doc.

[55] Manitoba, The Court of Queen’s Bench Surrogate Practice Act, C.C.S.M. c.C290 [Manitoba Act], ss.47(1). The provision refers to the “total” value of the estate suggesting that a gross value is to be used.

[56] Saskatchewan Administration of Estates Act, S.S. 1998, c. A-4.1 [Saskatchewan Act], s.9. The amount is established by regulation: The Administration of Estates Regulations, c. A-4.1, Reg. 1 [Saskatchewan Regulation], s.8.2. The provision does not specify whether this amount is gross or net although s.8 of Reg. 1 provides that any loans related to real property are to be deducted in calculating value.

[57] Northwest Territories, Proposed Estate Administration Rules of the Supreme Court of the Northwest Territories, Draft for Discussion Only, Presented to the Law Society of the Northwest Territories (November 13, 2014) [NWT Proposed Rules and Forms], online: www.lawsociety.nt.ca/data/public/other/probate-rules-draft.pdf.

[58] NWT Proposed Rules and Forms, note 57, Form 3 (Draft Memorandum and Affidavit in Support of Application for Declaration of Small Estate).

[59] National Conference of Commissioners on Uniform State Laws, Uniform Probate Code (2010) [UPC].

[60] ICALC, note 54; Joseph N. Blumberg, “51 Flavors: A Survey of Small Estate Procedures Across the Country” (2014) 28 Probate & Property Magazine, online: http://www.jdsupra.com/legalnews/51-flavors-a-survey-of-small-estate-pro-08930/.

[61] 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),