Posted April 5, 2021 by Raymond G. Leclair

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The government of Ontario’s optional simplified process for probating small estates comes into effect on April 1, 2021 and applies to estates with assets of less than $150,000. This will be a welcomed change for lawyers and their clients.

New Rule 74.1 of the Rules of Civil Procedure (as found in O.Reg. 111/21) sets out the provisions for small non-contentious estates. Among other changes, the new process features:

• a simpler application (Form 74.1A), reduced documentation and no bond requirement;
• filing by email in the Superior Court of Justice in the county where the deceased lived;
• paying the Estate Administration Tax by mail when you submit your application; and
• obtaining the certificate (Form 74.1C) on filing an application 30 days after sending, by email, mail or courier, to the beneficiaries a copy of the application and the will, if any.

The Ministry indicates if all documentation is properly filed, the Small Estate Certificate could be processed within 5 days. You will be contacted and receive the certificate in the manner you filed, by email or by mail.

Practice Management Tips

When acting on small estates:

• Familiarize yourself with the new procedures for small estates.
• Take time with your clients to determine whether the estate may meet the “small estates” criteria. Ask the clients for the list of assets and valuations where available. If the valuation is near the $150,000 level, consider whether the “small estates” procedure is appropriate, or whether probate should follow the general process.
• Note and caution clients that if after obtaining the Small Estate Certificate, one discovers assets that provides the estate with a value in excess of $150,000, one must apply for the regular probate and thereafter the Small Estate Certificate is no longer valid.
• The Estate Administration Tax exemption on the first $50,000 effective January 1, 2020 remains in place notwithstanding a small estate is valued at less than $150,000.
• Remind clients they must file, within 180 calendar days of receiving a Small Estate Certificate, an Estate Information Return, which lists the value of the deceased’s assets at the time of death, with the Ministry of Finance.
• If there are minors or incapable adult beneficiaries involved, you may need to send the application form to the Office of the Children’s Lawyer or the Office of the Public Guardian and Trustee.