Probate: Accessing Canadian Estate Assets

Our Service

We assist foreign clients who have inherited assets situate in the province of Ontario, Canada, in situations where a Court order (i.e., a “Certificate of appointment of an Estate Trustee” or “Probate”) is required in order for the client to be able to gain access to these assets; for example, where a Canadian bank has advised that they will not release funds from an account without a Court order.

What is Probate?

When a foreign domiciled person dies, his or her heirs may be left without easy access to their “Canadian” inheritance.

Getting access to the Canadian accounts will be much less of a problem if the deceased had an Ontario will. In this case, they would have appointed a local executor who will be able to apply for “probate” immediately upon their death. The application will be quick, easy and economical. Without an Ontario will, the heirs will have to wait for proceedings to finish in the country of domicile before being able to apply for “probate” in Ontario, and the application itself will be more complicated, time-consuming and expensive.

Depending on the deceased’s country of domicile and whether or not they had a will there, the Ontario courts provide for essentially four distinct types of application for “probate”; namely:

1. Confirmation by “Resealing” (other Canadian Provinces and Commonwealth countries)

Where there is an original grant of “probate” made in a Province or Territory of Canada or a country that is a member of the Commonwealth, the foreign executors can seek what is called a Confirmation by Resealing, which can be used for grants with and without a Will.

On an application for Resealing, the Ontario court will scrutinize the foreign will and may question its validity. The laws in Canada differ from the laws in other countries. The Canadian courts sometimes demand proof that the foreign will was validly signed under the laws of the foreign jurisdiction.

2. Certificate of Ancillary Appointment (foreign Non-Commonwealth countries with a will)

This application is sought when the original probate grant was made by a foreign non-Commonwealth jurisdiction and is “with a Will”. As with a Confirmation by Resealing, the Ontario Court may draw out the proceeding by asking questions regarding the foreign Will’s validity.

3. Certificate of Appointment of Foreign Estate Trustee’s Nominee (foreign Non-Commonwealth countries without a Will)

This application is used when the original Executor is appointed by a foreign non-Commonwealth jurisdiction and the original appointment is without a will. Given the lack of a will, the Ontario Court may require the posting of an administration bond as a guarantee that all taxes and debts are paid by the Estate.

4. Application for Certificate of Appointment of Estate Trustee Without a Will (where there is no foreign appointed Executor)

In many jurisdictions – in particular the civil law jurisdictions of Europe and Central and South America – the laws do not provide in all cases for the appointment of an Executor. Forced heirship laws apply and the inheritance passes directly to the heirs.

Where there is no foreign appointment of an Executor, the heirs will have to use this application, which is much more complicated and time-consuming because the Court will need to be convinced that the person being proposed as Executor is the appropriate choice, and, among other things, has the consent of all Estate beneficiaries. If the applicant is not an Ontario resident, the court may also require an administration bond to ensure that the Executor complies with their obligations to pay all applicable taxes and debts owed by the Estate.

Conclusion

Since none of the above applications is as simple or straightforward as the basic application for probate with an Ontario will, we generally advise our foreign domiciled clients to have an Ontario will.

Contact

For more information on applications for probate in Ontario, please contact me.

Paul Taylor - Taylor Estates Law

T.416.995.4024 Email: paul@taylorestateslaw.com

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