Dealing with worldwide assets in Estate Administration

BY: VALERIE DYE

Living in today’s globalized world has given rise to the not uncommon scenario of persons dying and leaving assets in several countries. When this happens, there are several ways in which the estate of such persons may be administered.

The first issue that presents itself when a deceased has assets in more than one jurisdiction is, in which country should the named estate trustee[1] apply for probate. The answer to this is based on cost and convenience. The estate trustee may apply for Certificate of Appointment of Estate Trustee in the country where most of the assets are, or that person may choose to apply in the country where fees are lower. It is important to note that if a Certificate of Appointment of Estate Trustee[2] is granted in a country outside of Ontario that document cannot be used to deal with assets in Ontario unless certain steps are taken.

If the original grant was made in a commonwealth country, then the person named as executor or estate trustee in that grant may present it to the court in Ontario and have it resealed. This simply means that the document will be stamped with the Ontario court stamp and signed by a registrar of the court. Once the grant is resealed it has the same effect as a Certificate of Appointment granted in Ontario and it gives the estate trustee the right to deal with the deceased’s assets which exist in Ontario.

If the original grant of probate or letters of administration was made in a country which is not a part of the British Commonwealth, then the estate trustee must apply to the court in Ontario for an ancillary grant before he or she can deal with the Ontario assets. The ancillary grant is almost similar to a new grant of probate or letters of administration and a separate certificate will be issued.

Whether a resealing or an ancillary grant is applied for, estate taxes will be paid only on the value of the assets in Ontario. It is also important to note that the estate trustee does not need to be residing in Ontario in order to apply for resealing or ancillary grant provided that in the case of the ancillary grant that trustee is named in the will.

The application for resealing a grant or for an ancillary grant may only be made by the person who has been named estate trustee or administrator in the original grant. Where the same person cannot make the application in Ontario, then someone else may apply for a Certificate of Appointment of Foreign Estate Trustee’s Nominee. This allows the foreign estate trustee to complete documents including a nomination form which will be submitted to the court in Ontario so that another person may be appointed estate trustee. This process is almost similar to making a new application.

To avoid the process of resealing of grants or applying for ancillary grants, persons, while alive, may elect to have a different will for each jurisdiction in which they have assets. In some cases, this may be considered an easier solution depending upon the circumstances. There will then be no need for a resealing or ancillary grant since there will be one will that deals with assets in Ontario and which names an estate trustee in Ontario and another will that deals with assets in another jurisdiction and which names an estate trustee or administrator in that jurisdiction. Ultimately, whatever decision is taken depends on the existing circumstances.

[1] The term Estate Trustee is also referred to as Executor or Administrator in other jurisdictions.

[2] Also referred to as probate or Letter of Administration in other jurisdictions.