All About Estates

Welcome Changes in the Filing of Probate Applications

I would like to thank the estates law clerks in the Private Client Services group of Fasken for their contributions to this blog.

This week, Attorney General Doug Downey (perhaps in the spirit of Thanksgiving) hinted at upcoming changes in the area of estates that would “manage the estate process with less hassle and address the probate application backlog”.

Currently, many jurisdictions are facing lengthy backlogs in processing applications for certificates of appointment of estate trustee (the “Probate Application”) and, as discussed in the blog “The Effect that Covid-19 is having on Administering Estates”, such delays are having an impact on the executor and/or administrator’s fiduciary duty to administer an estate in a timely fashion.

Minister Doug Downey appears to be somewhat of an advocate for streamlining and expediting the Probate Application process, which is a welcome step.

Effective October 6, 2020, as set out in the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media (the “Notice”), Probate Applications, supporting documents and responding documents may be filed electronically by email to the Ontario Superior Court of Justice (the “Court”)[1].  Of course, Probate Applications may still be filed in paper format, if one should choose to do so.  While certain original documents such as the original Will, original Codicil, bonds, ancillary certificates and certified copies are still to be filed with the Court, other supporting documentation, such as the application affidavits, consents, proof of death, renunciations, draft certificates, motions, can now be electronically filed by email.  The estate administration tax payment, or probate fees, must also accompany the original documents.

The applicable jurisdiction for filing a Probate application is set out in section 7 of the Estates Act [2].   If the deceased resided in Ontario, the Probate Application is filed in the Court office located in the county or district where the deceased had his or her permanent residence.  If the deceased had no permanent residence in Ontario or resided out of Ontario at the time of death, but died owning property in Ontario, the Probate Application is filed in the court office located in the county or district where the property is situated.  If the deceased died owning property in more than one county, the Probate Application can be filed in any of the counties where the property is located.  Where the deceased had neither a fixed place of abode nor any assets in Ontario, the Probate Application may be filed in any court office in Ontario.

When choosing to electronically submit the Probate Application, a new Information Form has been introduced which must be completed and emailed to the Court along with documents.  Other requirements for electronic filing to the court are set out in the Notice.

The issued Certificate of Appointment of Estate Trustee (the “Probate Certificate”) may now be electronically issued by the Court and delivered by email to the address provided by the applicant.

While this process has just been introduced and I’ve yet to submit a Probate Application electronically, certain questions remain to be answered:

  1. how are we to prepare notarial copies of the issued Probate Certificate that has electronically been received?
  2. the Notice also provides that, when submitting the Probate Application to the Court, “The subject line of the email sent to the court must indicate the acronym for the court, the area of law, court file number, and type of document, as set out in the example below:

SCJ – ESTATES – ES-1234567 – Application for Certificate of Appointment of Estate Trustee”

Based upon the current process of filing the Probate Application with the Court, the Court clerk accepting the Probate Application assigns a new court file number.  In light of the new requirement, when submitting electronic copies of the Probate Application, it is unclear as to how we are to provide the court file number in our subject line when one has not been assigned.

It should also be noted that the numbering format for court file numbers is different in each jurisdiction.  For example, in Toronto, their format is 01-XXXX/YY with YY representing the last two digits of the year of issuance.

  1. what safeguards are in place to ensure that, when submitting the original documents as required, such as the original Will, the Court will link the electronic record and the original documents together? Is there a risk of original documents going missing?
  2. if corrections are required, will the Court accept those corrections electronically as well?

Here’s hoping that the jurisdictions that are facing a severe backlog will be in a better position to outsource Probate Applications to neighbouring jurisdictions facilitate the Probate process.

I look forward to hearing about more changes that Minister Downey plans to announce to streamline the Probate Application process in Ontario in order to bring the estates area further into the 21st century.

For now, happy e-filing my friends, and Happy Thanksgiving!!

 

[1] https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/#6_Email_Processes_for_Certificates_of_Appointment_of_Estate_Trustee_Probate

[2] Estates Act, R.S.O. 1990, Chapter E.21

About Maureen Berry
Maureen Berry is a partner in the Trusts, Wills, Estates and Charities group at Fasken. Maureen’s practice is focused on wills, estate planning, domestic and international trusts, private corporation taxation, and executive compensation. Maureen also advises charities and non-profit organizations. Working with Canadian and international families, firms, corporations and charitable organizations, she provides advice on all aspects of private client matters. She is a leading expert in the fields of tax law and estate planning. As an Adjunct Professor at Osgoode Hall Law School, she teaches Advanced Estate Planning. Maureen has previously taught corporate tax and international tax at the University of Toronto and Western University, along with the Bar Admission course for up-and-coming lawyers.

1 Comment

  1. Laura Tyrrell

    October 9, 2020 - 1:59 pm
    Reply

    One suggestion made at the Estates Summit yesterday was to submit the electronic documents first and wait until the court assigns a court file number before sending the original Will and cheque for probate taxes so that you can reference the file number in the covering letter.

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