Where someone has already been appointed estate trustee by a court outside Ontario and the deceased held assets here, Ontario recognises that appointment through one of three structures. Where there is a will, the route is either a Confirmation by Resealing of Appointment of Estate Trustee under section 52 of the Estates Act, if the original grant came from the United Kingdom, another Canadian province or territory, or a British possession, or a Certificate of Ancillary Appointment of Estate Trustee With a Will if it came from anywhere else, including the United States. A separate nominee route applies to certain foreign intestacies, because section 5 bars ordinary letters of administration to a person not residing in Ontario. All three produce the same practical result, authority to deal with the Ontario assets, and on all three the Estate Administration Tax is calculated on the Ontario assets alone. This article deals with a grant made elsewhere and assets held here. The reverse problem, an Ontario estate that includes property in the United States, is a different process and is covered separately.
Which Route Applies to Your Grant?
The dividing line is the jurisdiction of the original court, not the deceased's citizenship or where they died.
| Confirmation by Resealing | Certificate of Ancillary Appointment | |
|---|---|---|
| Original grant issued in | The United Kingdom, another Canadian province or territory, or a British possession | Any other jurisdiction, including the United States |
| Statutory basis | Estates Act section 52 | Rule 74 practice, with the foreign grant proved |
| Effect | The existing grant is confirmed and given effect in Ontario | A new Ontario appointment is issued, based on the foreign grant |
| Available without a will | Yes | The nominee route generally applies instead |
| Discretion | The judge directs; resealing is not automatic | The court may require further material |
Section 52 is permissive rather than mandatory. It allows the foreign grant to be resealed under the direction of the judge, which means resealing is a discretionary act and not a registration formality. In the ordinary case, where the material is complete and nobody objects, it proceeds without difficulty.
Quebec is inside the resealing framework, not outside it. Quebec is a Canadian province, and section 52 expressly provides that letters of verification issued in Quebec are deemed to be probate for the purposes of that section. So a Quebec appointment supports a resealing application in Ontario in the ordinary way. What is different about Quebec is the reverse direction: because it is a civil law jurisdiction, an Ontario estate holding Quebec assets does not deal with them by resealing, and that is a separate question from the one this article addresses.
What If There Is No Will and the Foreign Court Is Outside the Commonwealth?
Section 5 of the Estates Act is the provision that creates the problem, and the nominee route is the answer to it. Letters of administration are not granted to a person who does not reside in Ontario, apart from the statutory resealing route. So a foreign estate trustee appointed on an intestacy by a court outside Canada and the Commonwealth cannot simply be recognised here.
Instead, the foreign estate trustee nominates someone in Ontario. The result is a Certificate of Appointment of Foreign Estate Trustee's Nominee as Estate Trustee Without a Will, applied for on Form 74J with the nomination itself on Form 74K. Security is required on this route, and a request to dispense with it or reduce it can be made. The foreign court's certificate is also generally expected to be recent, commonly dated within six months of the Ontario application, and court-certified copies are required.
This is the route people are surprised by, because it means the person who has authority abroad will not personally hold authority in Ontario. Somebody here does, on their nomination.
What Does the Application Involve?
Identify the route from the jurisdiction of the original grant.
Obtain a copy of the foreign grant certified by the court that issued it. This is the central document and a common source of delay, because foreign registries work on their own timescales.
Value the Ontario assets as at the date of death. This is the base for the tax and it is limited to the assets actually here.
Complete Form 74J, the consolidated application that covers resealing, ancillary appointment and the nominee route, along with the draft certificate.
Deal with security under the rule applicable to the particular certificate. The requirements differ between will-based ancillary grants, nominee appointments and resealed letters of administration, and the next section sets out which is which.
Pay the Estate Administration Tax deposit on the value of the Ontario assets.
File, and expect the court to ask for further material where the foreign documentation is unfamiliar.
How Is the Tax Calculated on a Cross-Border Estate?
Only assets located in Ontario are used. Ontario states this expressly for the three certificate types this article deals with: where the court issues a Confirmation by Resealing of Appointment of Estate Trustee, a Certificate of Ancillary Appointment of an Estate Trustee with a Will, or a Certificate of Appointment of Foreign Estate Trustee's Nominee as Estate Trustee without a Will, only assets located in Ontario can be used in the calculation of the Estate Administration Tax.
This is a different rule from the one governing an ordinary Ontario grant, and the difference is easy to miss because most published material describes only the general rule. On a domestic Certificate of Appointment of Estate Trustee the value takes in worldwide assets subject to specific exclusions, so a foreign bank account is caught. On a resealing, an ancillary appointment or a nominee appointment it is not. Our Estate Administration Tax guide sets out the general rule, which remains the starting point for a domestic application.
The ordinary exclusions still apply within the Ontario assets, including jointly held property passing by survivorship, and registered plans and insurance where a valid designation causes them to pass outside the estate. Certain property situated on a reserve may also be exempt.
What Does the Security Requirement Actually Mean?
Security is dealt with differently depending on which certificate is being sought, and trying to make one provision carry all of them is how this gets stated incorrectly.
Where the grant is will-based, section 6 of the Estates Act is the provision. Letters probate are not granted to a person who is not resident in Ontario or elsewhere in the Commonwealth unless that person gives the like security required from an administrator on an intestacy, or unless in the judge's opinion the security should be dispensed with or reduced under special circumstances. It is a residence trigger, so an applicant living in Alberta or in a Commonwealth country is outside it, and it is expressly subject to judicial discretion.
Where there is no will, section 5 is the obstacle rather than a bond. Letters of administration are not granted to a person who does not reside in Ontario at all, apart from the resealing route, which is why the nominee procedure exists. On the nominee route security is required, and a request to dispense with it or reduce it can be made with the application.
On a resealing of letters of administration, section 52 has its own rule. The foreign security certificate in the required amount can be accepted, and Ontario security is looked for where that certificate is absent. So a resealing applicant should establish what the originating court already required before assuming an Ontario bond is needed.
Where a bond is required, the statutory default is double the value of the estate unless a judge orders otherwise, and the court has power to reduce it or dispense with it. In practice an insurer-backed bond is frequently reduced, and the amount ordered commonly tracks the value of the assets under administration rather than twice that value. That is the outcome of an exercise of discretion, not the starting position.
The most common successful reduction argument is structural. Where the non-resident applicant is also the principal beneficiary, the exposure the bond secures is largely their own money, and the court will often reduce it to cover only the other beneficiaries' interests.
Sureties are either a licensed insurer or personal sureties. Two personal sureties are required above $100,000 and one at $100,000 or less. A personal surety must be an adult resident of Ontario with sufficient assets, and cannot be a lawyer or a court registrar.
Where This Goes Wrong
Assuming a bank will accept the foreign grant on its own. Under Ontario banking and insurance legislation, financial institutions may be protected in making payment to a foreign personal representative without an Ontario grant, but they are not compelled to recognise the foreign grant and commonly insist on Ontario documentation. Protection for the institution is not authority for the executor. The practical answer is to ask each institution in writing what it requires before assuming anything. Our guide to whether probate is needed when there is a will explains why the institution holding the asset drives the answer.
Applying for resealing when the grant came from the United States. This is the most common misrouting, and it costs a full application cycle. A United States grant is not resealed in Ontario; it supports an ancillary appointment.
Leaving security to the end. Where a bond is required, arranging it takes time, and an insurer will want financial information about the applicant. Discovering the requirement at the filing stage rather than at the planning stage is a familiar source of delay, and so is assuming the bond will automatically be written at the value of the assets rather than at the statutory default of double. Our guide to applying for probate in Ontario sets out the general application requirements.
Letting the foreign certificate go stale. Where the six-month currency expectation applies, a certificate obtained early and then held while other matters are sorted out can age past the point of usefulness, and a fresh certified copy has to be ordered from a registry in another country.
Importing the domestic tax rule into a resealing or ancillary application. On these certificates only assets located in Ontario are used to calculate the Estate Administration Tax. Applying the general worldwide-with-exclusions rule instead, and adding in the deceased's foreign bank accounts, overstates the value and the deposit, sometimes substantially.
If a grant has been issued somewhere else and there are assets here, you can book a free call to identify which route applies before any material is prepared.
Frequently Asked Questions
What is the difference between resealing and ancillary probate in Ontario?
Resealing confirms an existing grant made in the United Kingdom, another Canadian province or territory, or a British possession, and gives it effect in Ontario. An ancillary appointment issues a new Ontario certificate based on a grant made anywhere else, including the United States. The end result is similar in practice, but the route is determined by where the original court sat, and applying under the wrong one means starting again. Quebec sits inside the resealing framework: section 52 of the Estates Act deems letters of verification issued there to be probate for the purposes of that section.
Can an executor who lives outside Canada act for an Ontario estate?
It depends on whether there is a will and where the person lives. Section 5 of the Estates Act provides that letters of administration are not granted to a person who does not reside in Ontario, apart from the resealing route, so on an intestacy a foreign estate trustee generally nominates an Ontario resident instead. Where there is a will, a non-resident may be appointed, but section 6 provides that letters probate are not granted to a person not resident in Ontario or elsewhere in the Commonwealth unless security is given, or unless the judge dispenses with it or reduces it in special circumstances. An executor living in Alberta or in a Commonwealth country is not caught by that residence trigger.
Do I pay Ontario probate tax on the deceased's foreign property?
Not on a resealing, an ancillary appointment or a nominee appointment. Ontario states that where the court issues a Confirmation by Resealing, a Certificate of Ancillary Appointment of an Estate Trustee with a Will, or a Certificate of Appointment of Foreign Estate Trustee's Nominee as Estate Trustee without a Will, only assets located in Ontario can be used in the calculation. That is narrower than the rule for an ordinary domestic Certificate of Appointment of Estate Trustee, where the value takes in worldwide assets subject to specific exclusions, and confusing the two is a common source of an overstated deposit.
How long does resealing take in Ontario?
The court's published processing standard is about 15 business days for a regular certificate application and about five business days for a small estate application, longer where documents, evidence or information are missing or where the material raises an issue requiring a judge. Cross-border applications are more likely to sit in that second category, and the real timeline is usually driven by how long the foreign registry takes to produce a certified copy of the grant.
Can the bond be reduced or dispensed with?
Yes. The court has power to reduce a bond or dispense with it, and section 6 itself contemplates that the judge may do so under special circumstances on a will-based grant. Where the non-resident applicant is also the principal beneficiary, a common approach is to reduce the amount so that it covers the portion of the estate belonging to other beneficiaries rather than the whole. The statutory default is double the value of the estate, so a reduction is something applied for and obtained rather than something to be assumed.
Does a foreign will need to be valid under Ontario law?
The document proved by the foreign court is the will the Ontario application is built on, and a certified copy of that grant is the central piece of material. Where the will has features unfamiliar to an Ontario registrar, or where the foreign process differed materially from the Ontario one, the court can require further material before the certificate issues. This is one of the situations where preparing the application with the likely questions already answered saves a full cycle.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.