When a loved one passes away, one of the first legal steps in managing their estate can be the need for probate—the court process that confirms the validity of a will and grants authority to the executor to administer the estate. When an estate does not have cross-border or multijurisdictional considerations, obtaining a grant of probate, formally known in Ontario as a Certificate of Appointment of Estate Trustee, is generally a straightforward process, but it can become especially complex when the deceased held assets in more than one jurisdiction.
When someone dies owning assets (e.g., real property, bank accounts, investment accounts, retirement savings plans etc.) in more than one jurisdiction and has only one will, each jurisdiction’s laws regarding succession and estate administration must be considered to identify conflict of laws issues and ascertain various legal processes.
In Ontario, if the deceased held assets in the province but probate was granted elsewhere, whether in another Canadian province or territory or a foreign jurisdiction, you may need to obtain a Confirmation by Resealing of Appointment of Estate Trustee or a Certificate of Ancillary Appointment of Estate Trustee.
This blog looks at some of the issues in cases where there is a will but does not go into the slew of issues that arise when someone dies without a will (i.e., intestate) with assets in multiple jurisdictions and obtaining a Certificate of Appointment of Foreign Estate Trustee’s Nominee as Estate Trustee Without a Will.
Resealing vs Ancillary Grants in Ontario
Confirmation by Resealing of Appointment of Estate Trustee
A resealing grant is available when a grant of probate has already been issued by another Canadian jurisdiction, the United Kingdom, or a Commonwealth jurisdiction. Due to the legal commonalities and reciprocity among Commonwealth jurisdictions, the foreign grant can be “resealed” in Ontario, allowing the executor to deal with Ontario-based assets as if the original grant had been issued here. This avoids duplicating the entire probate process. An ancillary grant is applicable for all other foreign jurisdictions.
Certificate of Ancillary Appointment of Estate Trustee
If the original grant of probate was obtained in a non-Commonwealth jurisdiction, a new or “ancillary” grant must be obtained in Ontario. This gives the executor legal authority to deal with property in the province, particularly when dealing with land, financial institutions, or third-party interests.
Although probate and the administration of an estate differ in technical detail, the application process and distinction between resealing and ancillary grants are very similar across all Canadian jurisdictions, with the notable exception of Quebec.
The Quebec Exception
While Ontario and other Canadian jurisdictions require a resealing or ancillary grant to administer assets in that jurisdiction when the will was originally probated in another jurisdiction, Quebec operates under civil law and does not require resealing or ancillary grants. Instead, a probated will can be deposited with a Quebec notary who may issue a certified copy. However, executors must ensure they have the legal authority to act in Quebec under the will. If not, a liquidator (i.e., an executor) may need to be appointed by the Quebec court. Additionally, Quebec’s rules regarding joint ownership differ—there is no right of survivorship, and property held jointly is treated as an undivided co-ownership, passing through the estate.
Is Probate Required?
If your estate is currently comprised of assets located in multiple jurisdictions then multijurisdictional estate planning, which may include the use of separate situs documents, may be recommended. Further, the following scenarios generally require a grant of probate:
- Intestacy – if there is no will then the probate process will be required to have an estate trustee or administrator appointed.
- Real Property – transfer of title or the sale of real property or dealing with any mortgages or other loans or guarantees secured with real property, or any other liens against real property are subject to the land registration system under provincial legislation, which usually requires probate. This may not apply depending on how legal title is held and some exceptions exist such as the first dealings exemption in Ontario.
- Third Parties – third parties such as financial institutions and brokerages, rely on probate for the statutory protection it affords them when acting on the instructions of a duly appointed executor under a court grant of probate.
- Litigation – a grant of probate is usually required to defend or make any legal claims on behalf of the estate.
- Validity of Will and Executor Appointment – probate confirms the legal validity of a will, in the event its validity is being challenged as well as the appointment of one or more executors under the will, protecting the executor from claims of others who purport to be the executor or propound a different will.
Our increasingly global lives mean that many of us will form ties to and acquire assets located in multiple jurisdictions during our lifetimes without regard for how it will affect our estates. Further, many who undertake the administration of an estate are unaware of the issues that may surface if an asset is discovered in another jurisdiction and a grant of probate whether original, resealed, or ancillary is necessary.
— Nicholas André