US-Canada Cross Border Probate

Dealing with a loved one’s Canadian will from the U.S. when they had property or accounts in Ontario is definitely manageable. 

Ontario has its own way of recognizing a will. Even though you’re in the U.S., you can still handle things.

Ontario courts are familiar with Canadian wills. However, if you, as the executor (the person in charge of the will), live in the U.S., the court might ask you to put up a bond (sort of like an insurance policy) to make sure things are handled correctly.

The best first step? Chat with a lawyer who knows about these kinds of situations in Ontario. They can look at the details of the estate and guide you on exactly what needs to be done.

You typically do not need to travel to complete the process with our office, especially if you have engaged an attorney in the U.S. to help navigate the estate matters in the area where the deceased was a resident. As an executor, you will be required to follow Ontario’s requirements regarding ID verification.

A grant in one jurisdiction does not necessarily equal a grant in another. Ontario institutions (such as banks, credit unions or land registry offices) typically require local approval known as an ancillary grant of probate that endorses the executor’s authority to act in Ontario. In a way, the local institutions are not familiar with the laws of various U.S. states and generally do not accept a foreign grant of probate but instead may require that an Ontario court provide the authorization (known as ancillary probate). A local estates lawyer in Ontario with experience and understanding of the ancillary probate process can help make the process much easier and efficient. 

Ontario imposes estate administration tax (aka probate tax) on the value of the assets in Ontario. This is typically payable when all required materials are submitted to the court. 

Use a calculator here for an estimate: Calculating the Estate Administration Tax | ontario.ca

There are a number of other professionals you may engage, including, but not limited to, cross cross-border tax advisor, chartered professional accountant, real estate agent, insurance representatives, etc. 

The timing of the probate process depends on: 

1. a) How long it takes to gather and put together all the information obtained from the executor and/or their attorney (if it is a foreign or U.S. estate); 
2. b) Which court in Ontario is processing the application and its backlog; 
3. c) The complexity of the estate (ex, foreign estates or estates with complex assets may require additional time)

In courts where the backlog is clear, this can take a few months and longer in busier courts. 

Working with an experienced estates law firm can avoid delays while moving the matter along in a timely fashion.

The short answer is, it depends. 

In other words, it depends on the type of assets the deceased owned at the time of passing and whether those assets require legal authority (aka probate) to access or transfer. 

Often, assets which can require “probate” are real estate, investment accounts and/or bank accounts. In a sense, the probate process provides authority for the executor to act on the estate. 

The Succession Law Reform Act (“SLRA”) is the applicable law that applies to a situation where someone dies without a will (a state also known as an intestacy). 

The SLRA dictates who gets to inherit the estate, with the typical order being to the spouse, then children, parents and so on. However, there are tricky rules around inheritance, and it is important to consult with a local Ontario Lawyer. Without a will, the process is more involved and can lead to additional time and expenses.