Financial institutions are besieged by requests to release the assets of deceased people without a probated Will. A "probated" Will is one that has been submitted for court approval. The pressure to avoid probate results from high probate fees (in Ontario "Estate Administration Tax" or "EAT.") EAT is approximately 1.5% of the date of death value of an estate's assets. Going without probate increases the risks faced by Canadian financial institutions, and arguably foments elder abuse. Wrongdoers use the desire to avoid probate fees as a means to persuade older people to transfer assets – most commonly by putting assets in joint ownership. We should be encouraging people to probate Wills by simplifying the probate process and reducing probate fees. This would reduce risks for Canada's financial institutions, and also reduce the opportunities for elder abuse or the maladministration of estates. The Australian state of New South Wales has a probate system that should be considered as a model for reform. The relevant sections of the website for the New South Wales Supreme Court website can be found here, and here.
The main elements of the NSW system are:
- The forms are relatively user-friendly,
- The court website is very user-friendly,
- An applicant for probate must first pay a fee of $43 Australian to advertise on a searchable public website,
- Probate fees are charged on a sliding scale with an absolute maximum. At the low end, estates with assets under $100,000 pay no fee and at the high end one with assets of $5 million or more pays $5,406. (In Ontario an estate with assets of $100,000 would pay EAT of $2000 and one with assets of $5 million would pay EAT of $75,000.)
- The system allows executors to pay a fee of $43 Australian to publish a public notice of intention to distribute the estate's assets. This notice serves much the same purpose as advertisements for creditors in Ontario, which are run in newspapers of broad general circulation and cost very much more than $43.