Project Overview
This project examined how Ontario’s probate system affects small estates. Probate is a court process that confirms legal authority to administer an estate. While not legally required in every case, probate is often necessary in practice to transfer assets and properly settle an estate.
A key concern is that probate costs do not scale well for smaller estates. The smaller the estate, the more likely probate costs are to be disproportionate to its value. In some cases, the cost of probate may outweigh its benefits altogether, resulting in estates that are never administered and assets that are never distributed.
At the same time, probate serves important functions beyond collecting estate administration tax. It provides legal protection for testators, beneficiaries, creditors, and estate representatives, and supports certainty and stability in the transfer of assets after death.
The Law Commission of Ontario examined whether small estates should be exempt from probate, or whether probate could be simplified and made more affordable while preserving its core protections. Drawing on approaches used in other jurisdictions, the LCO recommended a simplified, made-in-Ontario solution.
Advisory Committee
The Advisory Committee members were:
- Holly Allardyce – Scotia Private Client Services Group
- Julia Fisher – Office of the Public Guardian and Trustee
- Laura Craig – Ministry of the Attorney General, Court Services Division
- Ian Hull – Hull & Hull LLP
- Hilary Laidlaw – McCarthy Tetrault LLP
- Suzanne Michaud – Royal Bank of Canada
- Satie Seeraj – Ontario Superior Court of Justice, Estates and Assessments
- Georgia Swan – HGR Graham Partners LLP
- Jasmine Sweatman – Sweatman Law
- Mary-Alice Thompson – Cunningham Swan LLP
- The Honourable Mr. Justice Thomas John McEwen – Ontario Superior Court of Justice
Key Recommendations
The Final Report makes 15 recommendations that fall into four areas of reform.
1. Create a Small Estates Probate Process
- Establish a simplified probate stream for estates valued at up to $50,000, designed to be accessible without legal assistance while remaining court-supervised and retaining essential legal protections.
2. Issue a Small Estates Certificate
- Provide estate representatives with a Small Estates Certificate that has the same legal effect as probate, limited to the assets listed in the application, with one opportunity to amend.
3. Provide Proportionate Legal Supports
- Offer supports tailored to the value and complexity of small estates, including simplified forms, online filing, a plain-language probate guide, a telephone help line, and access to cost-sensitive legal advice.
4. Improve Public Education and Transparency
- Support the small estates process through public education on the importance of making a will and the creation of a publicly searchable online estates database to help identify potential interests in an estate.