All About Estates

When Probate becomes an International Affair

Co-written by Jennifer Campbell, estate clerk at Fasken

Recently, we have dealt with a number of “international” estates, where (i) probate has been issued in a foreign jurisdiction, (ii) an executor is resident of another country, or (iii) a Canadian deceased held property outside of Canada. These matters have caused us to revisit the requirements set out for dealing with such international connections in order to obtain a Certificate of Appointment of Estate Trustee (probate) in Ontario:

  • To deal with assets in Ontario requiring probate, where a grant of probate has been issued in another Canadian province, or in the United Kingdom or “in a territory of British possession” the original probate grant may be “resealed” by the Superior Court, which means it is “of the like force and effect in Ontario as if the same had originally been granted by the Superior Court of Justice”[1].
  • Where probate is granted in a jurisdiction not captured by the above point, the executor or administrator must apply for an “ancillary appointment” in Ontario, to deal with such Ontario assets requiring probate. Further, where the executor is not resident in the Commonwealth, probate (whether an initial grant or a resealing) will not be granted unless a bond is provided.[2] The Court has the discretion to dispense with the bond under “special circumstances” (typically, where all beneficiaries are sui juris and have provided consent, and all debts and taxes of the estate have been paid).
  • When resealing or obtaining an ancillary appointment, only probate fees based upon the value of the Ontario assets is payable to the Court at the time the application is filed.
  • When trying to deal with assets in a foreign jurisdiction where probate was granted first in Ontario, a similar process for resealing or obtaining an ancillary appointment will likely be required in the foreign jurisdiction. Counsel will need to be retained in the foreign jurisdiction to assist in obtaining the necessary foreign grant.
  • A Will or other testamentary document produced in another jurisdiction that is not written in English or French will need to be translated before being submitted to the Superior Court for resealing or an ancillary appointment.
  • In some jurisdictions, it is possible to have probate issued for a Will that does not name an executor or administrator (in such jurisdictions, the court does not appoint an administrator; instead, the beneficiaries can administer the estate after probate is issued). This concept is foreign (no pun intended) to our system of estate administration, and, to obtain an ancillary appointment in Ontario, this will require the applicant to seek direction from the Court. This will add additional time and expense to the administration of the estate.

Of course, the best approach to avoid such issues is careful estate planning. It is possible to have a separate Will to deal with foreign property (or, to deal with just Canadian property). Multiple Wills will ensure that all assets are dealt with effectively under the law of the jurisdiction in which the assets are located, will minimize delays in the administration by avoiding the need to obtain probate in one jurisdiction before being able to apply in a second jurisdiction, and will avoid issues with translation or the need for judicial intervention. Wills in multiple jurisdictions must be carefully prepared, ideally with communication between legal counsel in both jurisdictions, to avoid issues like the inadvertent revocation of one Will by another, or the duplicate payment of debts, taxes, or legacies. However, the benefits of having a proper international estate plan far outweigh the challenges associated with trying to administer an estate with unique international issues with a plan made for a single jurisdiction.

[1] s. 51(2) of the Estates Act.

[2] s. 6 of the Estates Act, R.S.O. 1990, c. E.21

About Emily Hubling
Emily Hubling is an associate in the Trusts, Wills, Estates and Charities group at Fasken. Emily has experience in advising estate trustees in administering a range of complex estate matters, including intestacies, cross-border matters, and contested estates. Working closely with clients’ advisors, Emily prepares Wills, Powers of Attorney, and Trusts to assist clients in fulfilling their unique estate-planning objectives.

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