Last week, I blogged on the necessity of probate in Ontario for the purposes of commencing or defending against litigation. The simple fact is that, despite the popularity of joint accounts as an estate planning technique, and the occasional availability of the first dealings exemption to allow for the sale of real property, a Certificate of Appointment of Estate Trustee generally remains an essential requirement for the administration of estates in Ontario.

Another interesting consideration of the powers bestowed on an executor is in the context of foreign grants of probate. Authority granted to an executor in another jurisdiction gives that person no power over the assets of the deceased in Ontario. In Ontario (and other common law jurisdictions) a foreign grant will not suffice to allow the executor to take control of title to real property with a local situs, thus requiring either an ancillary grant (in Canada) or, if the foreign jurisdiction is in the British Commonwealth, a re-sealing.  

But does the same limitation on a foreign executor’s authority apply in the case of personal property? It is a nice question with no definitive answer. In my discussion with Barry Corbin on this issue he made this interesting observation: “What the law requires is not necessarily relevant where the party in control of the personal property — a bank or brokerage — takes the view posited.  In my experience, there has been, over the decades, a “hardening of the attitudes” which, as a practical matter, has made obtaining an ancillary grant mandatory.”

Thanks for reading (and thanks, Barry)

David Morgan Smith