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Heads Up On Cross-Border Probate

With increased mobility, it's becoming more common to have assets in several jurisdictions, in which case, it is important to create a comprehensive estate plan that considers all of your assets and not just the assets located where you live. To deal with assets in more than one jurisdiction, there are a number of advantages in having multijurisdictional or separate situs wills (see our advisory on multijurisdictional and separate situs will planning).

This blog focuses on what happens when a person dies leaving assets in more than one jurisdiction and only one Will. If the testator has worldwide assets, including some in Ontario, and a Will in his or her home jurisdiction which has been probated there and no separate Will in Ontario, the executor will most likely need to apply to the Court in Ontario to have the Will probated in Ontario as well. Without a local court appointment, the executor will not have authority to administer any interest in Ontario real property or other Ontario assets (the process will be different if the testator was domiciled in Ontario and has assets elsewhere).

The executor will either have to apply to an Ontario court for a Certificate of Ancillary Appointment of Estate Trustee or Confirmation by Resealing of Appointment of Estate Trustee (collectively referred to as an "ancillary court appointment" in this blog), which differ based on whether the testator was domiciled in a Commonwealth jurisdiction. Where the original probate was granted in a Commonwealth jurisdiction, resealing may be available from an Ontario court to confirm an executor's authority to act, in a simplified process.

Here are some cautionary issues to consider, which will add additional cost, time and nuisance for your executors:

The wait time to receive a grant of probate is currently five to eight months in Toronto. This timeline will be further extended if the executor needs to first probate the Will in the home jurisdiction court before subsequently probating the Will in Ontario (or vice versa).

Problems may also arise if the original Will is retained by a foreign court or by certain public repositories for wills in foreign jurisdictions, but no probate grant is issued or available. The original Will generally needs to be filed with an original application for a court appointment. The executor may need to apply to the Ontario court for proof in solemn form so that a notarial copy of the Will may be submitted with the application for a court appointment in the place of the original, where the original is not available.

An executor applying for an ancillary court appointment, who is not an Ontario resident or resident elsewhere in the Commonwealth, is required to give security (or a bond) to the Court. The amount of the bond is double the value of the Ontario assets pursuant to legislation. At the Court's discretion, the amount of security may be reduced or dispensed with. If there are any minor or incapable beneficiaries, the executor may not be able to get this requirement waived by the Court, although some part of the amount may be reduced in appropriate circumstances.

Dealing with an estate with global assets requires specialized assistance from a cross-border legal advisor. With proper advice and planning, these issues can be minimized by preparing a comprehensive plan to ensure the estate can be efficiently administered across borders. However, if that planning is overlooked, the cross-border legal advisor can assist with the complications that arise.

-Marly Peikes

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