All About Estates

Big New Rules for Small Estates

The law in Canada is not static – it evolves and changes to meet our society’s needs through incremental changes to the common law (i.e. the application and interpretation of the law through the courts) and through legislative changes. One recent change to Ontario’s laws was made through the Smarter and Stronger Justice Act, 2020 (the “Act”). The purpose of the Act is to make it easier, faster and more affordable for people to access the justice system. These legislative changes will come into effect on April 1, 2021.

A summary of all of the changes to Ontario’s laws has been posted to the Attorney General’s website, found here. Of particular interest to estates practitioners are the amendments to Ontario’s Estates Act. The goal of these changes is to enable the creation of a simplified probate procedure for small estates, one that does not exceed the maximum value of $150,000.00. Going forward, an estate of this size (or less) will not have to pay a bond except in specified circumstances, such as when there are beneficiaries who are not sui juris. The changes to the Estates Act will not impact the Estate Administration Exemption (which applies to estates valued at $50,000.00 or less).

In addition, a new regulation which was passed on February 12, 2021, establishes a new small estates probate process through the Rules of Civil Procedure (O. Reg 111/21). This regulation introduces the “Small Estate Certificate,” which has the same effect as probate, or a Certificate of Appointment of Estate Trustee, but is unique to small estates. However, it is important to note that the authority granted to an estate trustee pursuant to the Small Estate Certificate is limited to receiving and managing the estate assets listed in the probate application. This is in contrast to a Certificate of Appointment of Estate Trustee, which grants the estate trustee the authority to manage all of the deceased’s assets. It is worthwhile to review the Ontario Regulatory Registry for a summary on the processes, which also comes into effect on April 1, 2021.

Ontario’s current probate process has been criticized as unduly expensive and cumbersome. The goal of the creation of this new, streamlined probate process for small estates is to make the task more user-friendly and less costly. Hopefully, that will be the case.

About Joanna Lindenberg
Joanna is an experienced estates, trusts, and capacity litigator at de VRIES LITIGATION LLP. Joanna obtained her law degree from the Shulich School of Law at Dalhousie University after completing a Bachelor of Arts degree at McGill University. Following her call to the Ontario Bar in June 2011, Joanna obtained a Masters of Law at the University of California Los Angeles (UCLA), specializing in international and comparative law. Joanna's current practice focuses on, in part, will challenges, dependant’s support, capacity, and power of attorney disputes.

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