International Estates: Foreign Nominees, Ancillary Grants and Resealing
Issues involving estates with international aspects are on the rise. Technological advances over the last century have resulted in increased mobility and connectivity, such that people are now choosing to invest, live, work, study or retire abroad. As a result, it is becoming increasingly common for people to pass away with assets, such as bank accounts, investments or real estate, in foreign jurisdictions.
What happens when an individual dies with assets located in Ontario but is domiciled in another jurisdiction?
Attaining the authority to deal with assets located in Ontario can be puzzling for a foreign personal representative charged with the task of administering these assets.
Common law has traditionally distinguished between moveable property (personal property) and immoveable property (land or interests in land). Moveable assets are typically governed by the law where the deceased was domiciled, whereas immoveable assets are typically governed by the law where the land is situated.
However, in Ontario, a grant of probate is typically required in order for a personal representative to establish his or her authority to deal with assets located in Ontario. Banks and land titles offices generally require a grant of probate before they will release or transfer the assets. This position is the same whether or not a grant has been obtained from a court in some other jurisdiction.
It is possible to have a foreign grant recognized in Ontario, in lieu of obtaining probate in Ontario. Depending on the size of the worldwide estate, this may be the better option, as tax is typically levied on the value of the worldwide assets with a grant of probate in Ontario. If seeking recognition of a foreign grant in Ontario, estate administration tax will likely only be levied on the value of the assets in Ontario.
Where the original grant was made in a Province or Territory of Canada or a country that is a member of the Commonwealth, an Application may be made for Confirmation by Resealing of Appointment of Estate Trustee. The procedure is the same whether the deceased died with or without a Will. The requirements for a Confirmation by Resealing are set out in Rule 74.08 of the Ontario Rules of Civil Procedure (the “Rules”).
Where the original grant was made in a country that is not a member of the Commonwealth and the deceased died with a Will an Application may be made for a Certificate of Ancillary Appointment of Estate Trustee With a Will. The requirements for a Certificate of Ancillary Appointment are set out in Rule 74.09 of the Rules.
Where the original grant was obtained in foreign jurisdiction and the deceased died without a Will, an Application may be made for a Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee Without a Will. The requirements of this Application are set out in Rule 74.05.1 of the Rules.
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