It is becoming increasingly common for many residents of foreign jurisdictions to own assets in Canada and specifically in Ontario. Unfortunately, many people do not consider the implications of foreign ownership on death.
If a non-resident of Ontario who is resident in another part of Canada, the United Kingdom or a British colony, dies while owning assets in Ontario, with or without a will, the estate trustee who has been duly appointed as such by the outside jurisdiction can apply to the Ontario court to have it put its own seal or stamp on the outside jurisdiction’s certificate, thus indicating to third parties in Ontario holding estate assets (for example, a financial institution) that the certificate can be relied upon. However, this cannot be accomplished unless the outside estate trustee has first obtained the equivalent of the certificate of appointment in the outside jurisdiction.
A different certificate known as a certificate of ancillary appointment of estate trustee with a will must be obtained from the Ontario court, if a resident of a country outside of Canada, the United Kingdom or a British colony dies with a will while owning assets in Ontario.
Finally, when a resident of a foreign country that is not in the United Kingdom or a British colony dies without a will while owning assets in Ontario the requirements for being appointed as estate trustee are the most stringent. The applicant in Ontario must first be appointed the estate trustee (or its equivalent) in the jurisdiction where the deceased was resident, and then must designate an Ontario resident, called “the nominee” to act in place of the estate trustee without a will.
In Herring Estate (Re), 2009 CanLII 44707 (ON SC), the Local Estates Registrar in Toronto, Ontario, rejected a North Carolina Trust Company`s application for a certificate of ancillary appointment of estate trustee with a will. The reason cited was that because Branch Banking and Trust Company`s (“BB&T”) was not an approved registered corporation under relevant legislation, a certificate could not be issued to it. BB&T had made the application in order to fulfill its duties as executor under the will of Timothy W. Herring, a North Carolina resident, who died on May 16, 2008. Specifically, BB&T sought to administer the only asset Mr. Herring owned outside of North Carolina, which is a newly constructed condominium unit in Toronto that he purchased shortly before dying.
On the request of Counsel for BB&T, the Local Estates Registrar referred the application to a judge for reconsideration. The Court agreed that relevant legislation did not prohibit a foreign trust company`s appointment as estate trustee under an ancillary application. The Court further agreed that BB&T should be granted the appointment as the Ontario estate trustee of the Herring Estate pursuant to a certificate of ancillary appointment of estate trustee with a will. The basis of its decision is that the deceased named BB&T as the executor of his estate and the North Carolina courts have given effect to that appointment by issuing letters probate to BB&T on June 18, 2008; BB&T does not seek to offer its services to the Ontario public but rather, seeks to discharge the duties imposed on it by a North Carolina resident regarding one estate asset that happens to be located in Ontario. Thus, by acting as ancillary estate trustee in these circumstances, BB&T would not be contravening relevant legislation.
If you need assistance administering the Ontario assets of a deceased person who was non-resident at the time they died, please contact Andrea Kelly.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
