Ontario Assets and a Will Probated in Another Province

You may be the executor of someone who lived and died in another province, and you already hold a court grant there. Then you find the person also had an Ontario bank account, an investment account or a piece of land. The natural question is whether the grant you have is enough.

Often it is not, at least not on its own. This article explains how Ontario treats these estates, what resealing is, and how to approach banks and the land registry. Your facts matter, so a lawyer should confirm the route before you file anything.

Why the grant you hold may not be enough

A grant of probate is issued by a court in one place. Ontario's guidance says that if the deceased owned real property or assets held by a financial institution, the estate normally has to be probated.

If the deceased lived outside Ontario, the small-estate guidance directs you to contact the courthouse in the location where they owned Ontario property. That is a useful first call, because the answer can depend on what the asset is and where it sits.

Resealing: the usual route for some outside grants

Rule 74.08 of the Rules of Civil Procedure covers resealing in Ontario of an original appointment made in the UK, a Canadian province or territory, or a British possession (Commonwealth). Resealing means Ontario's court puts its own seal on the outside appointment so it can be used here.

Following the 2021 changes, the resealing application is on Form 74J, and the older Forms 74.27 and 74.28 are archived. Court forms are revised from time to time, so download the current version from the Ontario court forms site rather than relying on an old copy.

Forms you may see when a foreign or primary certificate is involved

On the draft certificate, Form 74C, Part 3 asks for the issuing court, the date, and the country or province of the foreign or primary certificate. It is completed only for a foreign nominee certificate, a resealing or an ancillary certificate.

If instead a full Ontario application for probate is needed, the steps include Form 74A, an affidavit of service, the draft certificate, and an affidavit for a will. You send the application to everyone entitled to a share before filing, and you file with the Superior Court in the county where the deceased lived. For a person who lived elsewhere, which court receives the file is something to confirm with the courthouse.

Tax and value: what Ontario counts

Estate administration tax is based on the value of the estate. For applications on or after January 1, 2020, there is no tax on estates valued at $50,000 or less, and $15 for every $1,000 (or part of $1,000) of value for estates over $50,000.

What goes into that value matters when assets are spread across provinces:

• Counted: Ontario real estate less encumbrances, bank accounts (including foreign ones), investments, and vehicles and vessels wherever located.
• Not counted: real estate outside Ontario, plan assets with a beneficiary designation, and jointly owned assets that pass automatically to the other owner.
• Mortgages and liens on real property can be deducted, but other debts such as funeral expenses, legal fees and credit cards cannot.

Whether estate administration tax applies to a particular resealing, and on what value, depends on the type of application. Ask the court or a lawyer before assuming a figure. Also note that an Estate Information Return must be filed within 180 calendar days after the certificate is issued, even if the value is $0.

Dealing with the land and the bank accounts

For land on Land Titles, an applicant for transmission as estate trustee states that they are the estate trustee, executor or administrator. If a certificate of appointment was issued, the application names the court, file number and date and says the appointment remains in full force. See our companion article on land title transfers for more detail.

For bank accounts, each institution sets its own paperwork, so ask what it needs once you have the Ontario-recognized authority. Do not distribute assets before the tax side is settled. A legal representative who distributes without a CRA clearance certificate can be personally liable for tax owing, up to the value of what was distributed.

What to do next

• Gather the grant and the will, and keep copies of everything you send.
• List every Ontario asset: accounts, investments, land, vehicles, and who holds each.
• Note where the grant came from, since that decides whether resealing is the likely route.
• Call the Ontario courthouse where the property sits to ask how they handle it.
• Download the current court forms and check them before you fill anything in.
• Hold off on distributions until a lawyer or accountant has confirmed the tax steps.

Frequently asked questions