Non-Resident Executor in Ontario: Court Requirements and Bonds

If you have been named executor of an Ontario estate but live in another province or country, you may wonder whether the court will treat you differently. The main concern is security, usually called a bond.

This article explains when a bond may be required, the exceptions, how a bond is provided or waived, and a few other points that matter when you manage an Ontario estate from a distance.

When does the court require a bond?

For a named executor, the Estates Act says 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.

In practice, Ontario.ca states that 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 may still require or waive bonds, and requirements can vary by courthouse, so confirm with a lawyer for your situation.

Executors versus administrators

The picture differs 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 s. 52.

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.

Exceptions, and how to ask for relief

• Small estates: no bond is required unless a beneficiary is a minor or incapable, but 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.

An applicant may seek an order dispensing with or reducing the bond, or limiting 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).

How a bond is given

Unless the court orders otherwise, a bond must come from a licensed insurer (Form 74L) or 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.

Other filings still apply to you. Within 180 calendar days of receiving a certificate of appointment, the estate trustee must file an Estate Information Return with the value of the deceased's assets at death. If the deceased did not live in Ontario, Ontario.ca says to contact the courthouse in the location where they owned Ontario property.

Tax points and next steps

For tax purposes, an estate resides where its central management and control actually takes place, and the executor's residence does not always decide this. An executor managing from abroad can affect the estate's residence. Cross-border executors should get tax advice.

Whatever your location, the legal representative must make sure the deceased's tax returns are filed and any balance owing is paid before distributing the estate, and should apply for a clearance certificate, as needed, before distributing any assets.

• Confirm where you and the deceased lived, and where the estate's assets are.
• Ask a lawyer whether a bond is likely, and whether consents could support a request to waive or reduce it.
• Speak with an accountant about the estate's tax residence before you start managing it.

Frequently asked questions