Probating a Foreign or Out-of-Province Will in Ontario

People move. They accumulate assets in more than one province — or more than one country. They make wills in one jurisdiction while owning real estate or bank accounts in another. When someone with Ontario assets dies, and either their will was made in another province or country or they obtained probate somewhere else first, the question arises: does Ontario require its own probate process?

The answer, in most cases, is yes — at least for Ontario assets. This article explains how probating a foreign or out-of-province will in Ontario works, when a simplified "resealing" process applies, and what estate trustees need to know before they start.

The Basic Principle: Each Province Has Jurisdiction Over Its Own Assets

Canadian provinces each have their own probate jurisdiction. The authority granted by a probate court in British Columbia to sell a Vancouver condo does not automatically extend to an Ontario bank account or Ontario real estate. To deal with Ontario assets, the estate trustee typically needs authority recognized by an Ontario court.

The same principle applies internationally. A grant of probate from a U.S. state court, a U.K. probate registry, or any other foreign court does not, by itself, give the estate trustee authority to deal with Ontario-based assets.

Option 1: Apply for an Ontario Certificate of Appointment

The most straightforward path is to apply directly for a Certificate of Appointment of Estate Trustee at the Superior Court of Justice in Ontario — just as if the deceased had been an Ontario resident. The application may proceed with the original foreign or out-of-province will, provided the will meets the requirements for recognition in Ontario.

Will Ontario Recognize a Will Made Elsewhere?

Ontario law contains rules for when a will validly made in another jurisdiction is treated as valid in Ontario. Generally, a will that was valid under the law of the place where it was made, or valid under the law of the testator's domicile or habitual residence, can be recognized in Ontario. These rules come from Ontario's Succession Law Reform Act and common law principles.

In practice, an out-of-province will (say, from Alberta or Quebec) is recognized in Ontario without much difficulty if it was properly executed in that province. A will from a foreign country may require more documentation to establish its validity.

What Documents Will the Ontario Court Need?

For a foreign will, the Ontario court may require:

• A certified or notarially authenticated copy of the foreign will.
• Evidence (often by affidavit or expert evidence) of the law of the foreign jurisdiction establishing that the will was validly made there.
• A certified copy of any foreign probate or estate authority that has already been granted.
• A translation (certified) if the will is not in English or French.

Option 2: Resealing a Foreign Grant of Probate

Ontario's Estates Act contains provisions allowing the court to "reseal" a grant of probate obtained in certain other jurisdictions — specifically, Commonwealth countries and some other recognized jurisdictions. When the court reseals a foreign grant, it treats that grant as if it had been made in Ontario.

Resealing is faster and less expensive than a fresh certificate of appointment application because the Ontario court is not re-examining the will from scratch — it is recognizing the prior determination of the foreign court.

However, resealing:

• Is only available for grants from recognized jurisdictions (the list is set by Ontario legislation — verify which countries qualify).
• Still requires a formal court application in Ontario.
• Does not eliminate the obligation to pay Ontario's Estate Administration Tax on Ontario assets.
• Does not work where the foreign court's grant was in a non-qualifying jurisdiction.

For a grant from another Canadian province or territory, resealing is typically available. For U.S. states, the position may depend on whether that state qualifies under Ontario's legislation — check with a lawyer.

When Two Probate Processes Run in Parallel

In some estates, two processes run simultaneously or in sequence:

• Primary probate in the jurisdiction of the deceased's domicile (usually their home province or country), which deals with the bulk of the estate.
• Ancillary probate in Ontario, specifically to deal with Ontario-based assets.

The Ontario ancillary application typically relies on the primary grant. It confirms that Ontario assets can be dealt with under the authority the primary court has granted. An Ontario lawyer coordinates with the primary estate lawyer (in the other jurisdiction) to obtain the necessary documentation.

Estate Administration Tax on Ontario Assets

Regardless of which pathway is used — fresh certificate or resealing — the estate trustee must pay Ontario's Estate Administration Tax on Ontario-based assets included in the Ontario application. There is no exemption because probate was obtained elsewhere first.

The tax is calculated based on the value of Ontario assets flowing through the Ontario certificate or resealing. As of writing, verify the current tax rates with ServiceOntario or a lawyer.

Common Cross-Border Complications

Real Property in Both Provinces

A deceased who owned a cottage in Ontario and a home in Alberta may require two separate estate applications — one in each province — even with a single will. The Ontario application covers the Ontario property; the Alberta application covers the Alberta property.

U.S. Residents with Ontario Vacation Property

Non-residents of Canada who own Ontario real estate need Ontario probate to transfer it. Their will, made in Florida or New York or wherever, may or may not be recognised without additional evidence of foreign law. U.S. estate tax implications also arise for U.S. residents with Canadian property — a cross-border tax issue requiring advice from advisors licensed in both countries.

Foreign Currency Accounts

Bank accounts held in Ontario in foreign currencies are still Ontario assets for probate purposes. The Ontario court's authority covers them regardless of the denomination.

Frequently asked questions