The new court process for probate in Ontario

 In Executor Help

Effective October 6th 2020, a new process for applying for a Certificate of Appointment of Estate Trustee (also known as probate) was released to the public. The link to this notice is here: notices and orders

As this process directly impacts ETP Canada and how we support Executor’s with their applications , I thought a review of the new steps may be useful to readers who are in a similar boat or are applying for probate directly themselves. I am certainly happy that the Superior Court is moving towards a more “digital friendly era” ….. however, with any new changes, we should also expect to stub our toes a little along the way! First of all, do not be mistaken, this is not a fully digital revolution. It is difficult to jump into that process when there are documents that must be in original form in order to be submitted (i.e. the will, the cheque for probate fees, etc.). My view is that this is the best hybrid version to start. Some of the application is submitted “online” and another portion is submitted the “old-fashioned” paper-based way. Again, not super smooth, but it’s a start. I was hoping that it was a fully encompassing digital process for the application….but I suppose everything starts with baby steps.

What does this new manner of submitting a Probate application to the Superior Court look like?

Essentially, the application for Certificate of Appointment is broken into two different submission manners, email and paper for one estate:

EMAIL PORTION OF THE APPLICATION:

As per the Notice released to the public, the documents that can be submitted via email only would include “the application form and supporting documents (affidavits, consents, proof of death, renunciations, draft certificates, motions).”

Emails are to be sent to the Superior Court location that you would normally file your paper-based application to (prior to this new process). A list of the email addresses for each location can be found by following this link: email locations

When sending your email, the notice states the following requirements:

“The subject line of the email must indicate the acronym for the court, the area of law, court file number, and type of document, as set out in the example below:
SCJ – ESTATES – ES-1234567 – Application for Certificate of Appointment of Estate Trustee
Each email sent to the court, including attachments, must not exceed 35 MB.
Document attachments must be in PDF format.
Each PDF attachment must contain only one court form and must be saved with name that specifies the court form number and type of document (e.g. Form 74.10 Affidavit of Condition of Will)
Must fill out a new application form that must be submitted with your email package
Certificates of Appointment of Estate Trustee will be electronically issued and delivered by email to the address provided by the applicant.”

PAPER BASED PORTION OF THE APPLICATION:

There are still items that would need to be filed with the Superior Court in paper form, according to the notice they are as follows:

“Original documents filed in support of the application (e.g. wills, codicils, bonds, ancillary certificates) and certified copies must be filed in hard copy by mail or courier to the Superior Court of Justice location where the application was filed or provided at the court office.
Estate administration tax payments and any filing fees must also be sent by mail or courier to the court office or provided at the court office.”

As I stated earlier, I understand that this is a first step in a bigger vision to become innovative in a traditionally non-digital area of practice. However, upon my review of this new process I have the following thoughts and questions for the Ministry of Attorney General, Public, and Professionals in this field:

1. Does this make the process even more confusing for the “do it yourself” Executor? Generally, the application is already pretty confusing, but at least prior to this, Executor’s could submit their entire package to the court in one step and “hope for the best” until they heard back.
2. What is the customer support procedure for submissions that possibly go to spam, tech issues, or for people who say they sent it, but it was never actually received?
3. How does the court expect a submission to be filed with a court file number in the email subject line when the submitter would not have this prior to creating the email? Does the court expect applicants to phone and obtain a court file number prior to sending their email?
4. Is the court considering a fully online option for Certificate of Appointment applications without a will? The only original paper-based item would be the bank draft for probate fees. Could this be changed to an “etransfer” type of option?

I would love to hear thoughts, answers to my questions, or further discussion on the matter, please feel free to reach out to me at Debbie Stanley

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