Does a Non-Resident Executor Need a Bond in Ontario?

You have been named as executor in a will, but you live in another province or another country. Before you start, you want to know whether the court will ask you to post a bond, and what that would involve.

The answer turns on where you live, whether there is a will with an acting executor, and sometimes the size of the estate. This article explains the main rules and the ways a bond can be reduced or avoided.

What a bond is and why a court asks for one

A bond is a guarantee, usually from an insurer or from personal sureties, that protects the estate if the person managing it causes a loss. The court's concern with someone who lives far away is practical: it can be harder to reach their assets if something goes wrong.

Every person granted administration, including administration with the will annexed, must give a bond with any sureties the judge requires. The bond is for double the sworn value of the estate, and the judge may at any time, in special circumstances, reduce or dispense with it.

Where you live makes the difference

For a named executor, the Estates Act ties the bond requirement to residence. Letters probate may not be granted to a person who lives outside Ontario and outside the Commonwealth unless they give the same security an administrator would, or a judge dispenses with or reduces it in special circumstances. Ontario.ca describes this the same way: a bond is needed for a named executor only when the applicant does not live in Ontario, another province or territory, or a Commonwealth country.

Courts can still require or waive a bond in practice, and requirements can vary by courthouse, so confirm the approach with a lawyer or the court office before you file.

Administrators and other situations

Different rules apply if there is no will, or no named executor is acting. Letters of administration may not be granted to a person not residing in Ontario, except when resealing letters under section 52 of the Estates Act. In those cases the bond rule for administrators applies whatever the person's residence.

If you were named in a will but do not want to act, you do not have to. A named trustee who declines or cannot act can be replaced, and the beneficiaries may nominate another person. A probate application must include a renunciation (Form 74G) from every living person named as estate trustee who has not joined the application. Once an executor renounces, their rights as executor wholly cease and administration proceeds as if they had never been appointed.

Exceptions, reductions and waivers

• Small estates: no bond is required unless a beneficiary is a minor or incapable. This is subject to section 6, so a non-Commonwealth non-resident executor may still need security.
• Surviving spouse on an intestacy: no bond is required where administration goes to the surviving spouse, the net estate does not exceed the preferential share, and an affidavit of the estate's debts is filed.
• Special circumstances: a judge may reduce or dispense with the bond.
• Limited security: an applicant may ask for an order dispensing with or reducing the bond, or limiting the security to Ontario assets.

If all persons entitled to share consent and none is a minor or an incapable person without a guardian or attorney, this can be requested without a motion, using a draft order (Form 74I), consents (Form 74G) and an affidavit (Form 4D). Whether the small-estate exception applies depends on the estate's value and the current regulation, so have that confirmed.

How a bond is given, and what to do next

Unless the court orders otherwise, a bond must come from a licensed insurer (Form 74L) or from personal sureties (Form 74M). A personal surety must be an Ontario resident who is not a minor, and one personal surety is enough if the estate's assets do not exceed $100,000.

• Confirm where you live and whether you are named in a will or would be an administrator.
• Get a rough value of the estate and list who the beneficiaries are, including any minors or incapable persons.
• Ask beneficiaries whether they would consent to a reduced or waived bond.
• Find out whether an insurer or Ontario-resident sureties are realistic for you.
• Speak with an Ontario lawyer before filing, since local court practice can vary.

Frequently asked questions