Executor for Out-of-Province Assets of an Ontario Estate

You have been named executor of an Ontario estate, and the person who died also owned a condo abroad, a bank account in another province or shares held outside Canada. You may wonder what changes because those assets are not in Ontario.

This article explains how those assets are treated for Ontario estate tax and what Ontario's rules say about foreign appointments. What another jurisdiction requires from you is a separate question, and it is worth confirming locally.

Your Ontario appointment and assets elsewhere

An Ontario estate trustee gets authority from an Ontario court, and the Ontario probate application is filed in the court for the county or district where the person lived at death. That authority is designed for dealing with Ontario property.

If the person who died lived outside Ontario, the application is made at the courthouse where they owned Ontario property.

Other provinces and countries set their own rules about who may deal with assets inside their borders. Some may accept your Ontario document with a local step, and some may ask for a separate local appointment. A lawyer in that place can confirm which applies.

How out-of-province assets affect Estate Administration Tax

Real estate located outside Ontario is excluded from the value used to calculate Estate Administration Tax. Vehicles and vessels are included whether they are in or outside Ontario.

For applications made on or after January 1, 2020, the tax is $15 for every $1,000 (or part thereof) of estate value over $50,000, and estates of $50,000 or less pay none. Jointly owned assets that pass automatically to the surviving owner are excluded, as are RPPs, RRSPs, RRIFs and TFSAs with a beneficiary designation.

Where the court issues a Confirmation by Resealing of Appointment of Estate Trustee or a Certificate of Ancillary Appointment of an Estate Trustee with a Will, only assets located in Ontario are used to calculate Estate Administration Tax. How this applies to your estate depends on the facts, so it is worth confirming with a lawyer or accountant.

The Estate Information Return still matters

The Estate Information Return is due within 180 calendar days after the certificate is issued, and an amended return is due within 60 days of learning the information is incomplete or inaccurate. Filing a false or misleading return, or not filing, can lead to a fine of at least $1,000 and up to twice the tax payable, up to two years' imprisonment, or both.

So keep a clear record of which assets are outside Ontario and why you excluded them.

When the roles run the other way

Ontario has procedures for an executor appointed elsewhere who needs to deal with Ontario property. A grant from the United Kingdom, a Canadian province or territory, or a British possession can be confirmed in Ontario by resealing. A grant from a court outside those places, for example in the United States, leads to an application for a Certificate of Ancillary Appointment of Estate Trustee with a Will.

A resealing application must include two certified copies of the grant (or the original plus one certified copy) and the security required by the Estates Act. An application for an ancillary certificate also files certified copies of the foreign grant and Estates Act security.

These steps are for Ontario assets of someone whose estate is being run elsewhere. How an Ontario executor deals with assets abroad depends on the rules of that place, so it is worth confirming with a lawyer there.

What to do next

• List every asset and note where it is located and how it is owned.
• Separate real estate outside Ontario from vehicles, vessels and other property for the tax calculation.
• Ask a lawyer in the other jurisdiction what document its institutions or land registry will accept.
• Keep accurate records of the estate's assets and transactions.
• Diarize the Estate Information Return deadline.

Before you distribute any property, the legal representative must obtain a clearance certificate from the Minister, which confirms that tax amounts have been paid or that security for them has been accepted. A legal representative who distributes without it is personally liable for the unpaid tax, up to the value of the property distributed, and the Minister may assess them at any time. The certificate is requested on Form TX19 after the required returns are filed and assessed and all income taxes are paid or secured. An estate with a GST/HST number also needs Form GST352.

If a foreign asset is large or the rules are unclear, speak with a lawyer before distributing anything.

Frequently asked questions