The Law Commission of Ontario makes the following recommendations:
1. a) The Estates Subcommittee of the Civil Rules Committee prepare and the Ontario government enact amendments to Rule 74 of the Rules of Civil Procedure and the Estates Act to provide for a simplified small estates procedure as an alternative to the existing probate system for Ontario estates valued at up to a monetary amount specified by regulation.
b) This procedure result in a court-issued Small Estates Certificate with equivalent legal effect to a Certificate of Appointment of Estate Trustee, except that authority is limited to the estate assets specifically listed in the application.
2. a) The small estates procedure be available in respect of estates with a total value not exceeding $50,000.
b) Total value be calculated consistent with section 32(1) of the Estates Act as all of the property that belonged to the deceased at the date of his or her death, including property discovered subsequent to a Small Estates Certificate being issued, and without regard to any encumbrance on real property that is included in the property of the deceased person.
c) The $50,000 value be designated by regulation to be amended as appropriate.
3. a) The small estates procedure involve a short, streamlined application form requiring the following information:
i. basic information about the estate,
ii. basic information about the applicant,
iii. basis of the applicant’s entitlement to administer the estate,
iv. a list of estate assets and their value, and
v. a standardized declaration affirming the applicant’s acceptance of the responsibility to administer the estate according to law.
b) The form be sworn or affirmed by the applicant before a commissioner of oaths.
c) The form require the following supporting documents:
i. a copy of the death certificate,
ii. a copy of the will, if one exists, and
iii. a form declaring that the notice requirement described in Recommendation 4 has been met.
d) The court office process and issue Small Estate Certificates on an expedited basis.
4. The small estates procedure require that the applicant
i. send a copy of the application and an explanatory form to all known persons entitled to share in the distribution of the estate at least 30 days before filing the application with the court,
ii. send the application to the Office of the Public Guardian and Trustee or the Office of the Children’s Lawyer, or both, as applicable, where there are minors or incapable beneficiaries at least 30 days before filing the application with the court, and
iii. file with the court, along with the small estates application, a single page declaration that the notice requirement has been met.
5. a) The small estates procedure be available to small estates even where there are minor or incapable beneficiaries.
b) Pursuant to Recommendation 4(ii), the applicant be required to send a copy of the application to the Ontario Public Guardian and Trustee or the Office of the Children’s Lawyer, or both, as applicable, at least 30 days before filing the application with the court.
6. Security not be required as part of an application for a Small Estates Certificate.
7. (a) The Estates Subcommittee of the Civil Rules Committee prepare and the Ontario government enact amendments to Rule 74 of the Rules of Civil Procedure and the Estates Act as necessary to provide that a Small Estates Certificate issued under a small estates procedure have the same legal effect as a Certificate of Appointment of Estate Trustee in the regular probate stream, with the sole distinction that authority under a Small Estates Certificate be limited to the specific assets listed in the application.
(b) The small estates procedure provide that where additional estate assets are discovered subsequent to the issuance of a Small Estates Certificate,
(i) if the revised total value of the estate does not exceed $50,000, the estate representative may file a statement disclosing the new assets and the court may amend the Small Estates Certificate accordingly,
(ii) applicants be limited to one amendment per estate,
(iii) if the revised total value of the estate exceeds $50,000, the estate representative must apply to administer the new assets by filing an application for probate under the regular stream.
8. The Ontario government amend the Estate Administration Tax Act and its regulations to exempt estates filing under the small estates process from the requirement to file an Estates Information Return.
9. a) The Ministry of the Attorney General leverage the institutional expertise gained in designing its online small claims court filing process for the purpose of designing a similar online filing system for a small estates procedure, with the goal of reducing the application costs of probate for small estates and increasing the efficiency of the system overall.
b) A paper process be retained for applicants who cannot or do not access online services.
10. a) The Ministry of the Attorney General, in partnership with institutions such as the Law Society of Upper Canada and other appropriate service organizations, publish an authoritative, plain-language guide addressing:
i. the purpose of the probate system, the responsibilities of estate representatives and the relative costs and benefits of obtaining probate and
ii. how to navigate the small estates process.
b) This guide be made widely available online, in court offices, funeral homes and other public institutions.
c) In addition to English and French, this guide be published in other languages reflecting the linguistic diversity of Ontarians.
11. a) A small estates application form, notice form, instruction sheet and other application materials be designed with simplified language accessible to unrepresented applicants, beneficiaries and others interested in the estate.
b) If the small estates process is not already being delivered online pursuant to Recommendation 9, an online forms assistant be developed to guide applicants step-by-step through the application process and educate them as to the meaning and effect of each of the application requirements.
12. The Ministry of the Attorney General, in partnership with institutions such as the Law Society of Upper Canada and other appropriate service organizations, establish a telephone help line for estate representatives of small estates, staffed by knowledgeable advisors and promoted widely as a resource for legal assistance in navigating the small estates process.
13. a) In the case of small estates, estate practitioners consider separating two components of traditional legal representation (distinguishing the provision of general information about probate from individualized advice about navigating the probate process) to allow tailoring of legal supports to the particular needs of applicants.
b) In addition to Recommendations 10 and 12, the Ministry of the Attorney General, in partnership with institutions such as the Law Society of Upper Canada and other appropriate service organizations, consider further methods of delivering standardized information about the purpose of probate and the probate process to estate representatives of small estates.
c) Targeted legal assistance for estate representatives of small estates be offered on a needs basis through a wider variety of service organizations such as community legal clinics, student legal aid clinics or programs such as JusticeNet.
14. The Ministry of the Attorney General, in partnership with institutions such as the Law Society of Upper Canada and other appropriate service organizations, collaborate on a public awareness campaign for educating the public on the importance of making a will and appointing an executor for Ontario estates regardless of value.
15. The Ministry of the Attorney General, in partnership with the Office of the Registrar General, develop an online, publicly searchable database of Ontario estates containing the following information:
i. name and address of the deceased,
ii. date of death,
iii. name and contact information of any applicant for either a Small Estates Certificate or a Certificate of Appointment of Estate Trustee, and
iv. confirmation when a certificate has been issued.
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