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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 related to a specific estate, it is recommended that you consult with the appropriate advisors in the relevant jurisdictions.

In a cross-border estate, it is the nature of the assets and the requirements of the institutions and registries that determine whether Ontario probate would be involved. Since these institutions control the assets, they often impose the requirement for a local Ontario probate (Certificate of Appointment of Estate Trustee) from a liability perspective, regardless of whether probate may have been issued in a different jurisdiction.

In Ontario, there is no uniform requirement for probate, but it is instead something that is determined on a case-by-case basis. This case-by-case analysis is highly driven by the nature of the assets and their structure.

This article provides a general overview of assets that are commonly encountered in cross-border estate matters and provides examples of the types of assets that may commonly trigger the requirement for probate.

Asset Structures and Requirements from Institutions

Just because an asset is geographically within Ontario does not mean it will always necessitate probate. The requirement for probate may differ based on:

• How the asset is registered or owned, and
• What the internal polices of the institution are.

In a sense, it is often these institutions and registries that determine whether they will require Ontario court authority prior to allowing any dealings with the specific assets in question.

Real Estate in Ontario

Real estate property in Ontario is one of the most common assets that trigger probate.

In Ontario, if real estate is held solely in the name of the deceased, the Ontario land registry and its various regional offices will generally require Ontario-based probate prior to allowing a conveyance or dealing with the real property. Even if probate has been granted in a U.S. jurisdiction, this requirement will still typically apply.

The types of real estate properties in Ontario that often require probate are:

• Residential properties
• Rental properties and/or investment properties, and
• Vacant land

In a sense, the Ontario land registry cares about ensuring the party dealing with the asset has the rightful authority and is not concerned about the:

• Specific type of real estate property
• Orders of foreign jurisdictions
• Considerations from a tax perspective

It is a very common requirement for Ontario court approval to be required in order to deal with such real estate solely in the deceased’s name.

Bank Accounts and Investment Accounts in Ontario

It is also very common that banks and financial institutions require Ontario-based probate to allow dealing with such institutional holdings.

In a situation where an account is solely under the name of the deceased, Ontario financial institutions may require this court authority in order to minimize risk. This is even where probate has already been obtained or is in the process of being obtained in a state in the United States.

While each institution’s practice may slightly vary, this is a common requirement with respect to bank and investment accounts.

Registered Plans

In Canada, there are a few registered plans which may have designated beneficiaries listed. A few of these plans may include:

• Registered Retirement Savings Plan (RRSP);
• Registered Retirement Income Fund (RRIF);
• Tax Free Savings Account (TFSA)

Depending on the setup of the plan with the financial institution, it is possible that a plan may have a designated beneficiary. If this is the case, the plan may pass to the named beneficiary outside the estate. In such a case, probate in Ontario may not be required by the institution in order to release the asset.

However, it is to be noted that the requirement for probate is a call made by the financial institution, regardless of the existence of a beneficiary, especially in the context of cross-border estates.

Shares of a Private Ontario Corporation

If an estate includes shares of a privately held corporation in Ontario, the probate requirement may depend on:

• The corporate structure at hand
• Shareholder agreements (including a unanimous shareholder agreement), and
• The requirements of third parties involved, such as financial institutions, corporate registrars and accounting requirements.

Where required, the purpose of probate is to give a locally recognized authority for third parties to be able to rely on. The role of Ontario estate counsel in such situations is limited to obtaining such authority.

Small Estates ≠ No Probate

Executors from the U.S. and their Attorneys may be surprised at times to learn that an institution or registrar may insist on Ontario probate for a modest amount of Ontario assets.

However, it is important to note that from the Ontario perspective, probate is not driven by asset value. Instead, it is based on the policy and requirements of the institution that is in control of the asset.

It is usually the case that an executor or their attorney in the U.S. is in touch with an Ontario-based institution and learns of the requirement for probate to allow dealing with the assets at hand. It is at this stage that Ontario cross-border probate counsel is involved to assist with obtaining the requisite authority.

Not Covered In This Page

This page provides a general overview of the types of assets in a cross-border estate, but does not address or provide advice on:

• Asset structure to avoid probate
• Estate planning strategies, and
• Tax treatment of specific assets

Such matters are out of the scope of this discussion.

Final Note

This page helps executors and their attorneys understand the common types of assets that may trigger probate. It is designed to help them understand the procedural requirements that they may encounter in Ontario.