HIGH STAKES FOR SMALL ESTATES: DO THE NEW PROBATE RULES FURTHER ACCESS TO JUSTICE?

Apr-21-2021

Many people believe they don’t need a will if they “don’t have anything.” They believe that because anything they own at death will automatically pass to a spouse or children, they need not worry. In fact, low-income Ontarians have the most to lose if someone in their household dies without a will. PBO’s Free Legal Advice Hotline regularly receives calls from people in desperate financial straits because a loved one – who always paid the rent or household bills – has died intestate and the family can’t access their bank account. They find themselves staring down impending eviction or battles with utility companies to keep the heat on. Grieving families who contact us are often overwhelmed by the impenetrable barrier of the probate process, which has historically been lengthy and complex, with no concessions for small estates.

The good news is that the Ontario government has taken steps to make the probate process simpler and more accessible for small estates. As of April 1, 2021, people dealing with estates worth $150,000 or less can use a process designed to be faster, so families aren’t left scrambling to pay bills on time; and easier to complete, so those who can’t afford a lawyer can apply without help.

While the changes are a big step in the right direction, they did not go as far as many had hoped. A 2015 report from the Law Commission of Ontario on simplified procedures for small estates recommended all of these changes, but also stressed the need for legal supports such as a plain-language guide to probate, a telephone help line, and affordable legal advice for applicants.

This is because estate administration, particularly if there are more debts than assets, can be a minefield and can land people in serious legal trouble. Simply put, the question isn’t just how to apply for probate, but whether to apply for probate, or indeed whether it’s safe to take any steps at all.

We often hear from people who are harassed by creditors after the death of a spouse or parent. They try to get creditors to back off by paying down the debts that they can, often based on which one is applying the most pressure. In the process, they have unwittingly favoured certain creditors and made themselves personally liable to the others.

The situation is compounded when family members end up following misguided direction from those who aren’t qualified to give legal advice. Clients who phone PBO’s Hotline are often confused by advice from bank staff who don’t understand the distinction between bank policy and law. Well-meaning staff may tell a caller that they must apply for probate to access funds in a bank account because it is the bank’s policy to require probate to release the account. The value of that account may not justify probate, especially if the deceased also has debts.

Similarly, court clerks often help unrepresented parties with their applications, leaving people with the impression that they’ve done the right thing, since they’ve filled the forms out correctly, when they should not have applied in the first place.

Only a lawyer can ask the questions necessary to understand the all the circumstances of an estate and to provide advice that allows family members to  act in the best interests of the estate while also protecting themselves from personal liability. A few minutes on the phone with a lawyer can give family members the guidance they need to handle creditors, assess the financial position of the estate, and understand their responsibilities and risks before deciding whether to deal with the estate.

Yet estate lawyers in private practice may not have the capacity to take calls like this from people who aren’t in a position to retain them, or may be hesitant to wade into these issues from a liability standpoint, unless they’re working under the auspices of an organized short-term pro bono service like PBO’s Hotline.

The simplified procedure for probate is a step in the right direction, but the goal of promoting access to justice cannot be met fully without the additional measures for legal advice and guidance that the LCO recommended. Given the stakes, low-income Ontarians must be able to access legal advice for estate planning and administration. PBO’s Free Legal Advice Hotline is well positioned to fill this gap. We already offer barrier-free access to free legal advice and document preparation to callers like the ones described above. The system in place is flexible, scalable and leverages technology and a willing roster of volunteers.

PBO’s capacity to serve low-income estates clients is limited only by resources. With additional support, timely and effective access to justice for low-income Ontarians in their hour of need would be a phone call away.