Ontario Probate Law – Certificate of Appointment of Estate Trustee

If you have never experienced a death in the family, then you are probably unacquainted with the terms probate, executor, and estate administration taxes. However, it is important to get familiar with these terms should the unthinkable happen, and this article aims to better prepare you with the legal reality of what occurs when a loved one dies in Ontario.

WHAT IS PROBATE?
When a person dies they may leave behind personal belongings, real estate and other assets which is known as their “estate”. In Ontario, the only person with legal authority to manage or distribute an estate is an “estate trustee” or “executor”.

“Probate” is a procedure of asking the Superior Court of Justice to:
•    Confirm the authority of a person named as the estate trustee in the deceased’s Will; or
•    If there is no Will, give an applicant the authority to act as the estate trustee of an estate.

WHAT IS A CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE?
When a person applies to be the executor and successfully obtains a Certificate of Appointment of Estate Trustee, they are granted with the legal authority as the executor to administer the provisions of the deceased’s Will or if there is no Will, to administer and distribute the estate to potential beneficiaries as directed by the Ontario Succession Law Reform Act.

WHAT ARE REQUIRED DOCUMENTS FOR PROBATE IN ONTARIO?
1.    Original Signed Will with an affidavit of Execution to the Will (if any)
2.    Death Certificate or proof of death
3.    Application for Certificate of Appointment of Estate Trustee along with relevant court documents

WHAT IS ESTATE ADMINISTRATION TAX?
In Ontario, when someone dies their estate will be subject to an “Estate Administration Tax” payable to the Ministry of Finance and it is due at the time of applying for a Certificate of Appointment of Estate Trustee from the Superior Court of Justice. This tax is calculated based on the total fair market value of all assets owned by the deceased at the time of death.  You do not need to pay the Estate Administration Tax if the total of the estate’s value is $50,000 or less. Any estate valued at over $50,000 is taxed at a rate of $15 for every $1000.

HOW LONG DOES THE PROBATE PROCESS TAKE?
Processing time varies depending on the workload at the specific Court the Application as filed. It usually takes between 6 to 8 weeks from the date the Application is filed until the date the Certificate is granted.

The Application is reviewed by the Court staff within 15 days from the date it is received and if all material is correctly filed, then the Court record is searched to determine if anyone else has made a similar Application, if any objections have been made or if a recent Will has been deposited with the Court.

If there are no issues with the Application, a court file number will be allocated to the Application and the matter will be set down for a Judge to review the application.

If the judge is satisfied with the material, then the judge will pass a court Order granting the Certificate.

ONTARIO'S NEW PROBATE PROCEDURE FOR SMALL ESTATES

As of April 1, 2021, Ontario is making changes to the probate procedure by setting the limit for a small estate at $150,000 and removing the requirement to post a bond in most small estate probate applications.  Introduced in Bill 161, Smarter and Stronger Justice Act, 2020, these changes will make it easier to file a probate application for a small estate that may otherwise go unclaimed. Amendments to simplify small estate procedures will also help people confirm their legal authority to manage an estate quicker while ensuring that safeguards remain in place to protect minors and vulnerable people who may have an interest in an estate.

The goal of these changes is to establish new and innovative ways of delivering services remotely, in-person and online in order to help address dated processes that put a strain on the justice system and contribute to delays and unnecessary wait times for families. These changes build on the government's work with justice partners to simplify other processes for small estates, including:
•    allowing for the completion and filing of a new simpler application form;
•    removing requirements for certain supporting documents to be filed (for example, a commissioned affidavit of service); and,
•    guiding applicants on the process to file a probate application for a small estate.

 What is a Small Estate?

A "small estate" means an estate that does not exceed $150,000 in value.   It is important to note that the introduction of small estates will have no impact on the calculation of the Estate Administration Tax (often called, "probate fees") under the Estate Administration Tax Act and the filing requirement of an Estate Information Return within 180 days following the grant of probate.

What is the New Simplified Probate Process for Small Estates?

The new procedures under Rule 74.1 will include a new simpler application form as well as removing some requirements for certain supporting documents to be filed with the court.  Under this process, the court will issue a "Small Estate Certificate" which will have the same legal effect to a Certificate of Appointment of Estate Trustee, save and except that the Estate Trustee's authority pursuant to the Small Estate Certificate will be strictly limited to the estate assets specifically listed in the application.

What is the Bond Requirement for Small Estates?

One of the more welcome changes is that the filing of a bond will not be required for small estates provided there is no minor or incapable beneficiary.  A bond is intended to protect the interests of creditors and beneficiaries of an estate and guard against Estate Trustee's mismanagement of the estate or fraud.

HIRING A LAWYER

You are not required to hire a lawyer to probate an estate and it is possible to ‘do it yourself’. However, this is not often advisable since dealing with the courts and the preparing the required documents can be a complex, cumbersome and confusing process.

To avoid complications, delays, rejections from the court, and navigating the often-complicated court forms and procedures most people seek legal assistance with the probate process.

Furthermore, with the introduction of the small estates probate process, a lawyer will be able to advise you if the new process is right for you or if the traditional process would be better suited to your needs.  For example, because of the limitations on the authority of an Estate Trustee under a Certificates of Appointment in the small estate process, it will be important for Estate Trustees to obtain proper advice about selecting the appropriate process to use.

At Ahmari Law Firm, our staff is experienced and understand the technicalities involved in the Ontario Probate process. The death of a family member or a close friend is traumatizing and our team will be there for you every step of the way and will provide you with peace of mind by assisting you in obtaining the Certificate of Appointment of Estate Trustee quickly and efficiently.