Blog Details

Understanding the Ontario Side of a Cross-Border Estate

Notice: This page provides general information only regarding Ontario estate administration in a cross-border context. It does not provide any 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.

When an estate includes assets both in Canada and the United States, the administration process often does not unfold in a single jurisdiction. As a result, executors discover that assets in different jurisdictions can trigger different legal requirements, institutional demands and varying court procedures. 

For U.S.-based executors – and for U.S. attorneys advising those executors, the existence of Ontario assets introduces a degree of uncertainty. A probate authority granted by a U.S. court may not be recognized by Canadian institutions, which often require Ontario-based court authorization before acting. Since a U.S. attorney would often be limited to practice within their licencing jurisdiction, local Ontario counsel is typically engaged to address the Ontario probate component. 

This blog explains the Ontario portion of a cross-border estate from the perspective of Ontario counsel. Our office assists with Ontario probate where it is required and coordinates with U.S. counsel and advisors (as required) so that the Ontario portion of the estate administration can proceed in an efficient manner.

What is a “Cross-Border” Estate?

In general terms, an estate is considered to be ‘cross-border’ where it involves multiple legal systems. Examples of this may include:

• A deceased person who resided in Ontario but owned assets in the U.S.
• A deceased person who resided in a U.S. state but owned assets in Ontario or any other Canadian province.
• An estate involves executors or beneficiaries who reside outside of Ontario.
• There are institutions or third parties that are in different countries.

An estate can get wrapped up in cross-border issues where the deceased owns even a single asset in Ontario (such as an investment account or real estate) thereby triggering the requirement for localized probate.

Ontario Probate Introduction:

In Ontario, the formal name of the ‘probate’ process is a Certificate of Appointment of Estate Trustee. This Certificate is obtained from the Ontario Superior Court of Justice.

The Certificate aka “Probate” in Ontario

The Certificate of Appointment of Estate Trustee does the following:

• Confirms who has authority to act for the estate under local Ontario Law
• Allows Ontario institutions to rely on this court-authorized document when releasing or transferring assets
• Provides approval by the court that various third parties may rely on for Ontario based assets

What the Certificate does NOT do:

• It does not replace any requirements in the U.S. for probate or related proceedings
• It does not automatically authorize actions in U.S. jurisdictions
• It does not determine any tax obligations in either jurisdiction

For U.S. attorneys, this certificate grants a jurisdiction-specific (Ontario) authority and not a global grant of power.

Assets in Ontario that commonly trigger the requirement for probate

It is often the case that the institution holding the asset decides whether a probate is required or not. A foreign probate may not be recognized as the respective institution may need to ensure compliance with Ontario requirements. Secondly, the nature of how the asset is held is also a factor for consideration.The assets may include:

Real Property:

• Even if probate in the U.S. has been completed, the land registry offices in Ontario require probate for properties that are registered in the deceased’s sole name.
• Real properties that may trigger Ontario probate may include:
  • Vacation Homes or cottages
  • Investment property
  • Vacant Land

Bank and Investment Accounts:

• Although probate may have been issued in the U.S., in order to guard against risk, Ontario financial institutions may require probate (Certificate of Appointment) prior to releasing funds that are registered solely under the deceased’s name.

• Ontario Private Corporation Shares:

  • If the deceased held shares of a private corporation in Ontario, probate may be dependent on the corporate structure and third-party requirements. An Ontario lawyer’s role may be limited to assisting in obtaining local probate where required.

What the Ontario Probate Process Involves (at a high level, and without addressing case-specific requirements)

At a high level, and without addressing case-specific requirements, the process of obtainingProbate in Ontario is a court-based process that may involve the following steps:

• Preparing a package to the court with all pertinent information and documents
• Submission of the original will (if applicable)
• Related affidavits
• Addressing administration bond requirements
• Responding to court requests for information
• Disclosure of estate values for the purposes of Ontario estate administration tax
• Correspondence with any related parties or institutions in an effort to obtain information to strengthen the application
• Sharing the approved documents with the executors, their U.S. attorney (where authorized) and local institutions

While every effort is undertaken to move the matter efficiently and effectively, processing times can vary depending on court workload, court location, complexity of the specific file at hand.

Coordination with U.S. Counsel on Cross-Border Estates

While each file may differ depending on whether it is initiated by a U.S. firm or a U.S. Executor directly, in such matters, the Ontario attorney works in conjunction with the U.S. attorney in order to ensure the matter is handled properly.

As Ontario counsel, our role typically includes:

• Advice on whether probate is commonly required for the specific Ontario-based assets in question.
• Gathering of information and documentation from both the executor and the U.S. Attorney, as applicable. These documents often require two certified copies of the U.S. probate documents.
• Preparation of Estate documentation for satisfaction by Ontario courts.
• Providing Ontario-approved documentation to U.S. counsel and to the requisite entities.

As Ontario counsel, we do not advise on U.S. probate, tax, or state law. Our retainer is limited to the Ontario estate matter. The division of responsibility between counsel is important and protects executors from jurisdictional missteps.

Recurring Challenges in Cross-Border Estates

Certain challenges arise frequently in cross-border estates, including:

• Non-recognition by Institutions: Canadian institutions may not recognize documents or probate authorization from a U.S. jurisdiction / state
• Timing Challenges: Ontario typically requires certain steps to have been taken and documents available in the U.S. prior to initiating the process here
• Limitation of Information: The Court process typically requires asset details which may be difficult to obtain at the outset
• Advisors from multiple jurisdictions: advisors on both the legal and tax front must work in a coordinated front to provide alignment on the matter. We often urge early coordination and introduction in order to achieve targeted results and reduce delays.

Information Focus

These pages are intended for:

• U.S. executors dealing with a loved one’s estate that has Ontario assets involved.  
• U.S. attorneys that are advising executors in the U.S. on an estate which has Ontario connections.
• Professionals (accountants, financial advisors) that are seeking to understand how probate fits into a cross-border administration matter.

This information is general in nature and is not a substitute for legal advice related to your specific case.

Next Steps

• For U.S. Executors

If you are handling a loved one’s estate which has an Ontario estate connection, it is possible that an Ontario probate may be required. Our firm can help explain whether a Certificate of Appointment (Probate in Ontario) is typically required and guide you with respect to the steps and timing involved.

• For U.S. Attorneys

If you are advising an executor on an estate that has cross-border elements in Ontario, our Ontario probate lawyer will be able to discuss the process and requirements here so that the matter aligns with the probate process in your state.

Final Note

Since cross border estates have overlapping legal systems, it is critical that roles are defined at an early stage so that the executor receives jurisdiction-specific advice to administer the estate in a timely manner.

This blog is an introductory overview of the Ontario aspects of a cross-border estate. Additional pages address specific topics such as the Ontario Certificate of Appointment, Ontario-based assets in a cross-border estate, and coordination with U.S. counsel.