Foreign Estate Trustees and Assets in Ontario
In this previous blog, Diana Tebby provided an overview of the process of applying for probate or, as she points out, what is now called making an “Application for a Certificate of Appointment of Estate Trustee with [or without] a Will”. This process, as Diana writes, is the Court procedure for the formal approval of the will by the Court as the valid last will of the deceased. It is also the confirmation of appointment of the person who will act as the Estate Trustee (formerly referred to as an executor) of the estate. This process gives the Estate Trustee the authority to act on behalf of the deceased.
If you are the representative of an estate where the deceased was domiciled in a jurisdiction outside of Ontario but where the deceased left assets located in Ontario, you will need to obtain authority from the courts here to deal with those Ontario assets. In this blog, we will discuss what options are available to foreign estate representatives to obtain the requisite authority to deal with assets located in Ontario. The Rules of Civil Procedure provide what steps may be taken and it will depend on where the deceased was domiciled and whether he or she died with or without a will.
Rule 74.08 of the Rules of Civil Procedure provides for the resealing of an original appointment that was made in the United Kingdom, in a province or territory of Canada, or in any British possession (country belonging to the Commonwealth). If the deceased died in another Canadian province, for example, and the estate trustee has been appointed in said province, the estate trustee may provide the original certificate to the court and that original grant of probate is confirmed in Ontario – it is “resealed”. These provisions apply whether the deceased died with or without a will.
In the case where the deceased had a will and the estate trustee was appointed in a jurisdiction other than any one of the locations set out in Rule 74.08, then Rule 74.09 of the Rules of Civil Procedure will apply. In this case, the estate trustee will make an application for a Certificate of Ancillary Appointment of Estate Trustee with a Will.
In the case where an appointment was made in a jurisdiction other than those set out in Rule 74.08 but the deceased did not have a will, then Rule 74.05 of the Rules of Civil Procedure will apply. In that case, the estate representative will make an application for a Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee Without a Will.
Each of Rules 74.05, 74.08 and 74.09 refers to the security that may be required upon making the application. The requirements for security are governed by sections 35 and 36 of the Estates Act. The amount of security, as well as the authority of the court to reduce the amount of security or to dispense with the requirement is set out at section 37 of the Estates Act. Estate Trustees should determine how these provisions apply in their own circumstances.