November 20, 2015

The Law Commission of Ontario (LCO) has released its final report on a proposal for a new simplified probate procedure for small estates. The LCO’s report, which includes 15 different recommendations, envisions the creation of a process for estates valued at up to $50,000. In effect, the new system would be a simpler probate system that would be an alternative procedure to be used instead of the current probate system. Applicants would be able to apply without the need for legal assistance. It would provide similar protections to what probate now provides, but at a reduced cost, thus making probate more accessible to estates with relatively fewer assets, and where it may not be economical to apply for probate.

Applicants on behalf of small estates would be required to fill out a form with information about the estate, including identifying the applicant, the applicant’s entitlement to administer the estate, a list of estate assets and their value, and a declaration affirming the applicant’s acceptance of responsibility for administering the estate. Copies of the application would be sent to all people entitled to a share of the estate, and to the Office of the Public Guardian and Trustee or the Office of the Children’s Lawyer where the interest of incapable persons or minor children were affected. Estate trustees would not be required to post security, and would be exempt from filing the recently introduced Estate Information Return. The recommendations also call on the Attorney General to reproduce its online small claims court filing process – also newly introduced – for probate for small estates.

Probate provides a number of benefits: it validates the will, ensures that the testator’s wishes are respected, and protects the beneficiaries, creditors, and estate trustee of an estate. But as the LCO’s report notes, only about 20,000 probate applications were filed each year in Ontario from 2009 and 2012. During the same period, there were around 90,000 deaths each year in the province. The inevitable conclusion is that probate is likely being underutilized in the province.

The recommendations reflect a desire to make probate for small estates more accessible for Ontarians. The small estates application form and other materials would be written in simplified language, a telephone help line would be set up, and the administration of a public awareness campaign to educate the public on the importance of making a will and appointing an executor. The LCO’s recommendations are often influential, and many of their recommendations may eventually become law in Ontario (although their recommendations are not binding on the government). Making the protections of probate more widely available would certainly be a positive development.

The LCO’s full report is available here.