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Notice: This page provides general information only regarding Ontario estate administration in a cross-border context. It does not provide legal or tax advice. For advice specific to a particular estate, appropriate professional advisors should be consulted in the relevant jurisdictions.

It is the presence of assets in multiple jurisdictions that gives rise to cross-border considerations in the estate context. This type of estate frequently requires that professionals from various jurisdictions be involved in carrying out the work.

Considerations Involved in a Cross-Border Estate Matter

• An executor dealing with assets in a U.S. state
• The executor has a U.S. attorney looking after the U.S. localized elements
• The executor or attorney knows of or discovers the existence of Ontario-based assets
• The executor or U.S. attorney attempts communication with the institution or registry in control of the Ontario-based assets and is advised that localized probate will be required.
• The result is that an Ontario-based cross-border estate attorney’s involvement is a must to obtain localized probate to satisfy the requirements.

Therefore, cross-border estates often require multiple counsel from both the U.S. and Ontario. It is crucial that coordination between the two is effective to ensure that the administration of the estate proceeds in an efficient and orderly fashion.

The intent of this page is to outline how an Ontario probate works alongside the U.S. estate administration and the role the Ontario counsel plays when working alongside its U.S. counterpart in a cross-border estate matter.

Jurisdictional Authority

In a cross-border estate matter, jurisdictional authority is exercised over the assets located within that jurisdiction’s borders. This typically means that:

• An Ontario lawyer is involved in relation to the Ontario probate, and
• U.S. attorney is involved in probate matters in relation to the U.S. federally and at the state level.

It is important that the roles are identified and defined at an early stage to prevent any confusion and eliminate jurisdictional missteps.

General Order of Proceedings

In a typical scenario, Ontario ancillary probate proceeds after probate proceedings in the U.S. have been completed, and probate is issued. However, the engagement of an Ontario lawyer typically takes place right at the outset so that the timeline of the engagement can be made known to all parties as soon as possible.

It is important to note that the exact sequencing of probate is often influenced by requirements from the institutions, documentation availability and the type of assets at hand.

As a result, in an estate with cross-border elements, early advice and input from an Ontario lawyer is recommended.

Document and Information Exchange

Generally, communication between counsel of both jurisdictions involves the exchange of various documentation and information, such as:

• Copies of probate issued in the U.S.
• Copies of Wills and Trusts related to the matter
• Confirmation of the authority of the executor
• Notarizations / certifications related to the above

U.S. attorneys often assist their Ontario counterparts by providing the specific documentation to support the application in Ontario for the issuance of probate.

Cross-Border Matters Require Local Authority

One of the frustrations presented by U.S. executors arises from an assumption that a probate issued in one jurisdiction should be recognized in Ontario.

Like many other jurisdictions, authority in Ontario is jurisdiction-specific, and that is the model followed by institutions and registries in the province.

It is important to take steps early to ensure that professionals from both jurisdictions are involved and connected to ensure that steps taken in one jurisdiction support, rather than delay or hinder, proceedings in the other.

Assistance and Limitations of Ontario Counsel

The role of Ontario counsel in a cross-border probate matter typically includes:

• Advising on Ontario probate court requirements
• Addressing procedural requirements
• Communicating with Ontario institutions, as needed
• Communicating with and obtaining the requisite information from the U.S. attorney to assist in the Ontario probate process.

Ontario counsel does not assist with any elements of U.S. probate or tax-related matters. These items remain within the scope of U.S. counsel and advisors.

Timelines and Expectations

Given the added complexity of multiple jurisdictions, cross-border estates typically take longer to administer than a probate in a single jurisdiction.

This is simply because there are multiple legal systems and professionals involved. As a result, it is important that clear communication and early coordination are facilitated in order to reduce any unnecessary delays.

Closing Note

The administration of a cross-border estate involving Ontario assets can proceed efficiently if the matter is handled by all parties, executors and advisors on a coordinated front.