Reg. 194 under the Courts of Justice Act (Rules of Civil Procedure).
Regulation - Minister
Bill or Act:
Courts of Justice Act
Summary of Decision:
This regulation was approved on February 4, 2021, and filed on February 12, 2021.
This regulation amending Reg. 194 under the Courts of Justice Act (Rules of Civil Procedure) is available online at: https://www.ontario.ca/laws/regulation/r21111
Analysis of Regulatory Impact:
There are no administrative costs anticipated
Summary of Proposal:
The regulation establishes a simplified small estates procedure as an alternative to the existing system for estates valued at up to the small estates value. This value is set at $150,000 pursuant to O. Reg. 110/21, made under the Estates Act.
Rule 74.1 allows for a court issued Small Estate Certificate with the equivalent legal effect to a Certificate of Appointment of Estate Trustee, except that authority is limited to the estate assets specifically listed in the application. The rule specifies the requirements for applications for a Small Estate Certificate, including the requirements for filing, for notice to persons entitled to share in the estate and to seek authority for estate assets that are discovered after the issuance of a Small Estate Certificate.
There is one set of eligibility requirements and one set of forms for all types of applications (applications with a will and applications without a will). The application form requires basic information about the deceased and the applicant, the estate assets and their values, the basis of the applicant's entitlement to administer the estate and seeks confirmation of the applicant's acceptance of the responsibility to administer the estate according to the law. An applicant can make declarations by checking off boxes in the application form. There are fewer requirements for supporting documents. For example, it is not necessary to obtain signed renunciations from persons with a right to apply for probate. An applicant can make a declaration that such persons renounced.
A commissioned affidavit of service is not required to be filed. Instead, a simple and short form must be completed to declare that the notice requirements have been met. An applicant must send a copy of the application to all known persons entitled to share in the distribution of the estate (to beneficiaries and the Office of the Public Guardian and Trustee or the Office of the Children's Lawyer, or both, as applicable where there are minors or incapable beneficiaries) at least 30 days before filing the application with the court.
The application's notice section explains why the beneficiary is receiving the application, advises them of their right to object to the application and explains the potential outcomes where they do not oppose the application. Beneficiaries are provided with an opportunity to protect their interests by the requirement for 30 days to pass before the application can be filed. This notice period provides beneficiaries with an opportunity to challenge the application if they so wish. In the absence of an objection to an application, consent would be inferred. Proof of the consents of persons entitled to share on an intestacy are not required.
Rule 74.1 includes 7 new rules and 6 new forms (Forms 74.1A, 74.1B, 74.1C, 74.1D, 74.1E, 74.1F).
The regulation also makes consequential amendments to:
- 11 estate court rules by inserting references to new Rule 74.1 (r. 4.02 (1.1), r. 14.01 (2.1), r. 14.06 (4), r. 37.13 (4), r. 38.09 (7), r. 38.10 (4), r. 74.01, r. 77.02 (2) (b), r. 75.1.02 (1) (b) (i), r. 75.1.02 (1) (b) (ii), r. 75.2.01).
- 9 estate court forms (Forms 74.36, 74.37, 74.38, 74.40, 74.41, 75.1, 75.2, 75.3, 75.4).
Ministry of the Attorney General
Corporate Policy Unit
720 Bay Street, 7th Floor
Toronto, ON M7A 2S9
April 1, 2021