Changes to Ontario Probate Form 74A
The new Form 74A Application for a Certificate of Appointment of Estate Trustee, effective January 1, 2022, replaces:
- Form 74.4 Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant)
- Form 74.4.1 Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant) Limited to the
- Assets Referred to in the Will
- Form 74.5 Application for Certificate of Appointment of Estate Trustee with a Will (Corporate Applicant)
- Form 74.5.1 Application for Certificate of Appointment of Estate Trustee with a Will (Corporate Applicant) Limited to the Assets Referred to in the Will
- Form 74.14 Application for Certificate of Appointment of Estate Trustee without a Will (Individual Applicant)
- Form 74.15 Application for Certificate of Appointment of Estate Trustee without a Will (Corporate Applicant)
- Form 74.7 Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will
- Form 74.17 Notice of an Application for a Certificate of Appointment of Estate Trustee without a Will
Critically, it eliminates the Notice of an Application (Form 74.7 and 74.17). In this new process, the application itself contains the notice and must be served on the beneficiaries.
This form also consolidates all variations of the initial Application for a Certificate of Appointment of Estate Trustee, eliminating the following conditions which previously required the use of a different form:
- Whether there is a will or not
- Whether the applicant is a person or a corporation
- Whether the certificate is limited to the assets referred to in the will or not
Given that this form gathers the most information of any estate form in the probate process, and also eliminates the Notice of an Application, it is also the form with the most changes in comparison to the forms it replaces as of January 1, 2022.
Initial Information:
The first paragraph refers to the applicant(s) directly, rather than the filing lawyer.
Since Form 74A now consolidates the application for a Certificate of Appointment of Estate Trustee with a Will, with a Will Limited to the Assets Referred to in the Will, and without a Will (previously Forms 74.4, 74.1, 74.5, 74.5.1, 74.14, and 74.15), it now includes a list of these different options. The applicant must then check the appropriate box.
Parts 1 & 2 – Information about the Deceased and Information about the Deceased’s Testamentary Documents
Form 74A now also has two separate fields for whether the deceased resided in Ontario, and for whether the deceased owned property in Ontario.
Previously, the application asked whether the deceased owned real property in Ontario only in the event that he or she did not reside within the province.
The other changes in this section are cosmetic, and require no new information compared to the information that was previously required on the application.
Part 3 – Information about the Deceased’s Spousal Relationships
Information about the deceased’s spousal relationships earns its own section in this new version of the application. This ties in to one of the objectives of these new forms, which is to align with the Accelerating Access to Justice Act, Schedule 9, which repealed the provision that a marriage automatically revoked a will. Additionally, property rights are ended for spouses that were living separate and apart as a result of a breakdown of their marriage.
This section therefore requires details with regard to the deceased’s spousal relationship: if applicable, whether the spouses were living separate and apart at the time of the death, and whether the will had been revoked by a marriage that took place before January 1, 2022.
Additionally, this section now includes fields related specifically to testate or intestate files, whereas previously these two circumstances required entirely different forms. As a result, only the applicable questions should be answered, and we recommend responding to the others with N/A.
Parts 4 & 5 – Statement of Assets
The fields regarding the estate value are formatted differently, but still require the same information as previous versions of the application.
Note: this application only requires the total values of the real property (net of encumbrances) and personal property, but unlike on the Small Estate Application, the assets themselves should not be listed.
Parts 6 – Entitlement to Apply
This form also introduces a new section, the Entitlement to Apply. Once again, a number of variations are available and the applicant should check the box that is appropriate.
When there is a will, the applicants must specify whether they were named in the will or in a codicil, and the date of said document. Under all other circumstances, the applicants must provide details of a court order or the specifications that entitle them to apply, such as their relationship to the deceased.
In this section, applicants must also specify if they are a corporation, rather than filing a separate application (previously Forms 74.5, 74.5.1 or 74.15).
This section will also require that the applicant provide the names of any other person with a right to apply.
Part 7 – Beneficiaries
This section lists the minor beneficiaries, incapable beneficiaries, and other beneficiaries. This information was previously provided in the now-eliminated Notice of an Application (Form 74.7 and Form 74.17).
Of note, this section now asks for the email address of the beneficiary or the beneficiary’s representative, if available.
Part 8 – Declarations
The application’s declarations are now contained within Part 8. This replaces the information that was previously provided in the Notice of an Application and the Affidavit is contained within the application itself.
Note that the declarations now refer to serving the Application itself, whereas the Notice previously referred to serving the Notice on the beneficiaries.
Additionally, applicants are now asked to specify whether the application is filed at the court location where the deceased resided or where the deceased owned property (or to explain, if neither is applicable).
Each applicant’s information must be included in this section. Additionally, this section now includes fields for the applicants’ email address and phone number.
Lastly, this section is where the filer’s information is now provided. Previously, it was provided in the first paragraph of the application; the first paragraph now references the applicants themselves instead.
Affidavits
Each applicant should sign an affidavit on a separate page. These can be executed in person or remotely.
Notice
The notice to beneficiaries is now contained within the application itself; it includes clear instructions to the beneficiaries should they wish to object.
Backpage
No changes have been communicated with regard to the format of the backpage, or whether they continue to be required with every court form.
