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Key changes for “small estates” in Ontario coming April 1, 2021

April 1, 2021

By Lucinda Main, Partner, Lori Isaj, Lawyer, Beard Winter LLP

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Toronto, Canada

The Government of Ontario introduced changes to the Estates Act in the Stronger and Smarter Justice Act, 2020 to make it easier, faster, and more affordable for individuals to administer small estates.

The simplified rules for small estates, effective as of April 1, 2021, include changes to the Rules of Civil Procedure set out in O. Reg. 111/21 that create new provisions related to the probate process for small estates.

Previous to these changes, the probate procedure was the same for all estates regardless of the size. The new small estates rules are a welcome change for Ontarians navigating the probate process following the passing of a loved one.

The changes include:

Increasing the value of a “small estate”

• As of April 1, 2021, a “small estate” in Ontario is one that does not exceed $150,000 in value. Importantly, the new small estate value will not affect estate administration tax, also known as probate fees, which will continue to apply to the portion of the estate exceeding $50,000.

Removal of bond requirement

• Currently, the Estates Act sets out a number of circumstances when the filing of a bond is required, often resulting in delay and increased costs.
• The new rules provide that the requirement to post a bond for a small estate will be removed, except where a beneficiary is a minor or is deemed incapable.

The simplified small estates probate process

• Rule 74.1 of the Rules of Civil Procedure will allow estate trustees to apply for a Small Estate Certificate both when there was a will and even if there was no valid will. This certificate will have the same effect as a Certificate of Appointment of Estate Trustee, except that the authority of an estate trustee pursuant to the Small Estate Certificate will be limited to the estate assets listed in the application.
• The applicant for a Small Estate Certificate must provide a copy of their court application along with copies of the will and codicil(s), if any, to all persons entitled to share in the distribution of the estate. Notably, the applicant can provide a copy of the documents by e-mail, as well as by regular mail or courier. The applicant must then wait 30 days before filing the application with the court located in the jurisdiction where the deceased person last resided.
• If the applicant discovers additional assets after the court issues a Small Estate Certificate, but that do not exceed the $150,000 small estate threshold, the applicant can file an Application to Amend Small Estate Certificate, and the court will issue an Amended Small Estate Certificate.
• If the applicant discovers additional assets after the court issues a Small Estate Certificate that exceed the $150,000 threshold, the applicant can proceed with a regular application for a Certificate of Appointment of Estate Trustee under Rule 74 of the Rules of Civil Procedure.

Questions

Our experienced estate and trust planning lawyers are ready to assist you. Please contact Lucinda Main or Lori Isaj at lmain@beardwinter.com or lisaj@beardwinter.com with questions or inquiries.

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