Ontario overhauls probate application process

The Ontario government has overhauled the province’s probate application process in an effort to simplify it and align it with changes to provincial estate law that take effect next year.

In mid-October, the province announced it was reducing the number of forms to 23 from 58, and reformatting them to feature a larger font, fillable text boxes and simplified language. The new forms will be effective Jan. 1, 2022.

The government is replacing 43 existing forms with eight new forms, while introducing a new unified procedure for filing for probate whether or not the deceased had a will. Under the current rules, different forms are required depending on whether a person died with or without a will.

The province is also making administrative changes to 15 current estate court forms to incorporate amendments to the province’s Succession Law Reform Act (SLRA) enacted in April, which come into force on Jan. 1, 2022.

The new forms are “streamlined compared to their predecessors” and “ought to make the process of applying for probate simpler and more accessible, particularly for lay persons,” wrote Suzana Popovic-Montag, estate lawyer and managing partner with Hull & Hull LLP in Toronto, in an email to Investment Executive. The issue of “which form ought to be used will no longer depend on whether or not the deceased person executed a will,” she said.

The new forms and procedures also put a greater focus on ensuring beneficiaries learn about their potential entitlement in an estate, and expressly require that applicants confirm they have served notice of application with the Office of the Children’s Lawyer or the Office of the Public Guardian and Trustee in estates where minors and incapable adults are involved.

“While these changes appear small, they are noteworthy and commendable because they [should] make it easier for the government to protect the interests of vulnerable beneficiaries,” Popovic-Montag said.

Information on the forms about where applicants and other parties with an interest in an estate can find free resources online about their rights under provincial estate law “should help Ontarians learn more about the probate process,” she added.

In a blog post published on All About Estates, Maureen Berry, a partner at Fasken LLP, and Sandra Arsenault, a law clerk at Fasken LLP, wrote that “these new forms will be easier [to use] for individuals with little to no estate administration experience, which is the ultimate goal. For those of us with existing knowledge, we have some unlearning to do.” The changes to the forms “drastically alter the probate procedure” in the province, the authors wrote.

Krystyne Rusek, an estate lawyer with Pallett Valo LLP in Mississauga, Ont., said she’s concerned the new forms and procedure will bog down the probate application process.

Practitioners are still catching up with a variety of recent changes Ontario made to estate law, including the introduction of a new small estates process, in addition to the upcoming changes to the SLRA, she said.

“It’s too much, too quickly,” said Rusek, who suggested that estate lawyers will need to familiarize themselves with the new forms by early December at the latest, “as most practitioners start drafting their applications about three or four weeks before they’re submitted.”

Rusek predicted that as people get used to the new rules and forms, many applications will be rejected in the first six to 12 months of 2022, increasing the backlog of probate applications.

Rusek said she would have preferred the government adjust the current forms in anticipation of the upcoming legislative changes on Jan. 1, and then introduce revamped forms and procedures in the new year. “This would have allowed estate solicitors a period of time to become familiar with the forms before they take effect” and provide legal organizations an opportunity to inform and educate their members, she said.

Rusek also suggested that applying for probate will remain challenging for lay people despite the government’s efforts at simplifying the process.

As an example, Rusek pointed out that the new application for certificate of appointment of estate trustee (Form 74A) contains questions about a deceased’s marital status, including if there was a separation or breakdown in the deceased’s marriage at the time of death, that specifically make reference to recent changes in the SLRA.

“Even people with the [professional] background are going to have trouble with this,” Rusek said. “Just because you make [the form] larger font and fillable doesn’t make it better.”