Can a Non-Resident Be the Only Executor of an Ontario Estate?

A will names one executor, and that person lives in another country. Perhaps a sibling moved abroad years ago, or the deceased trusted a child who now lives overseas. You may be wondering whether the appointment even works, or whether the court will insist on a second, local executor.

In Ontario, the executor is usually called the estate trustee. Residency does not simply cancel the appointment, but it can add a step. This article explains the security rule, how the bond is calculated, and the practical and tax questions a non-resident executor should raise early.

Does residency stop someone from serving alone?

The Estates Act says letters probate are not granted to a person who is not resident in Ontario or elsewhere in the Commonwealth unless that person gives the same security required of an administrator on an intestacy. A judge can dispense with or reduce that security in special circumstances.

In plain terms, the rule is not an outright ban on a non-resident acting alone. It is a condition: security is expected unless the judge decides otherwise. Whether your situation qualifies as special circumstances depends on the facts, so it is worth confirming with a lawyer.

Ontario's own probate page words the bond requirement a little differently, referring to applicants who are not Ontario residents, or who live in another province or territory or in a Commonwealth country. Because the wording differs in form from the statute, rely on the court's current form instructions and get advice on which applies to you.

What is the bond and how big can it be?

A bond is a guarantee that protects the estate and those interested in it if the executor causes a loss. Under the Estates Act, a bond is set at double the amount at which the deceased's property was sworn. The judge may reduce or dispense with the bond in special circumstances.

That sworn amount comes from the statement of the value of the deceased's property that must be sworn before a grant is made. For a larger estate, double that figure is a large number, which is why people often ask the court to reduce or waive the requirement.

Other practical points for an executor abroad

The estate trustee named in the will typically applies for the certificate, although they may let someone else apply. A non-resident can therefore work through an Ontario lawyer, but the security question still has to be addressed in the application.

Once appointed, the job is real work: winding up affairs, paying taxes, bills and debts, collecting the assets and distributing what is left to those entitled. Real and personal property of the deceased vests in the personal representative as trustee for the people entitled, subject to payment of debts. Doing this from abroad means dealing with banks, land transfers and the Canada Revenue Agency at a distance.

• Time zones and signing: documents may need to be signed and sworn, so plan how that will happen.
• Local help: many non-resident executors rely on an Ontario lawyer or accountant for filings.
• Co-executor: some families choose to add a local co-executor. Whether that fits a particular will depends on its wording.

Tax issues that can catch non-resident executors out

Estate administration tax in Ontario is not owed on an estate of $50,000 or less. Above that, it is $15 for each $1,000 (or part) of value over $50,000, based on value at the date of death and paid when the application is filed. An Estate Information Return must be filed within 180 calendar days of the certificate being issued, even if the estate's value is $0.

There is also a separate withholding question if the executor is paid. Income Tax Regulations s. 105(1) requires a person paying a non-resident a fee or other amount for services rendered in Canada to withhold 15 per cent. CRA's circular says the payer can include individuals, corporations and trusts, and a payer who fails to withhold is liable for the amount plus interest and penalties. The circular is old, and whether an executor's fee counts as services rendered in Canada is not something the general rules settle, so confirm it with CRA or an accountant before paying.

What to do next

• Decide whether you actually want to act. A person named as estate trustee is not required to act.
• Ask an Ontario lawyer whether security will be required and whether you can ask the judge to reduce or dispense with it.
• Gather the information needed to estimate the value of the deceased's property for the sworn statement.
• Raise the 15 per cent withholding question with an accountant before any executor fee is paid to you.
• Diarize the 180-day Estate Information Return deadline once the certificate issues.

Frequently asked questions