Probate for Small Estates
By: Michelle W. Kang, JD
As of April 1st, 2021, executors of modest estates valued at up to $150,000 (referred to as a “Small Estate”) have the option to apply for a “Small Estate Certificate” in Ontario. This new probate application procedure is laid out under Rule 74.1 of the Rules of Civil Procedure (O. Reg 111/21) and indeed requires fewer supporting documents than the regular probate procedure as laid out under Rule 74.
Shortened Processing Time
In our experience, an application for a Small Estate Certificate can take anywhere from 4 to 8 weeks for the court to process, whereas a regular estate probate application may take anywhere from 2 to 6 months before a Certificate of Appointment of Estate Trustee is issued. Understandably, the pandemic and reduced court staff contributed to more than usual delays.
Limitations of a Small Estate Certificate
Mandatory 30-day notice period before filing application package
In contrast to the usual notice to beneficiaries in a regular probate application – where beneficiaries are notified via service of the required form (Form 74.7 or Form 74.17) without any additional waiting time prior to filing the application with the Court – the Small Estate Certificate process requires the executor applicant to send notices in the required form (Form 74.1A – Application for Small Estate Certificate) to persons with an interest in the estate at least 30 days in advance of filing his or her application with the Court (Form 74.1B – Request to File an Application for a Small Estate Certificate). For urgent probate applications of Small Estates, it may be more efficient to submit a regular application with a letter explaining the need for urgency or to schedule a short court appearance to seek a waiver of the notice requirement.
Only use the Small Estate process if the value of the Estate is likely to remain < the $150,000 threshold
A Small Estate Certificate grants the Estate Trustee the authority to manage estate assets that are listed on the court-issued Certificate itself. If an estate asset is discovered after the grant of the Small Estate Certificate and was not declared for probate previously, it will not be listed on the Small Estate Certificate. This means that the small estate executor will not be able to exercise any authority over any newly discovered estate assets after the grant of probate.
Assuming the total value of the estate remains below $150,000 upon discovery of new assets post the grant of the Small Estate Certificate, the executor must then obtain an “Amended Small Estate Certificate” to gain authority to administer the newly discovered estate assets.
If it is discovered that the unlisted estate asset pushes the value of the entire estate past the $150,000 threshold, the estate will then no longer qualify as a Small Estate under the Estates Act (R.S.O. 1990, c. E.21), and the executor must then commence an Application for a Certificate of Appointment of Estate Trustee under Rule 74, the regular probate application procedure.
The Small Estate Certificate is still unfamiliar to third-party institutions
As the Small Estate Certificate is only beginning to circulate in Ontario and is unlike the traditional Certificate of Appointment of Estate Trustee in appearance, third parties (financial institutions, art dealers, insurance companies etc.) are not as familiar with it and are still learning (as we are) about the authority and limitations that the Certificate holds. As time goes on, however, and as Small Estates are probated in this new manner more often, it should become as widely accepted as the regular Certificates of Appointment are today.
Please note the above information is not legal advice and is only provided for informational purposes.