I recently received an email from Jim who had some questions about his uncle’s estate and probate fees. Jim lived in India. Jim’s uncle, who was also a resident of India, had recently passed away leaving a Will. Jim was named as executor (or Estate Trustee with a Will). His uncle had been a frequent visitor to Canada and had invested in a couple of Canadian GICs. Jim wasn’t sure what authority he needed to cash out the GICs. He was also wondering about probate fees. He was hoping there was a way to avoid paying probate fees (or
in Ontario, ‘estate administration tax’) on the GICs.
Although many think that being part of the Commonwealth is just an interesting bit of history and of no real value today, I told Jim that as India is a member of the Commonwealth, dealing with the Canadian GICs won’t be as difficult as it would be if his uncle had been a resident of a non-Commonwealth country when he died.
Jim, as executor, can apply to have the probated Indian Will ‘resealed’ in Ontario. He will need to provide certain documents along with an executor’s bond (referred to as ‘security’) equal to the value of the assets in Ontario.
Probate fees, unfortunately, will be required and are payable by the estate. Once the probated Indian Will is ‘resealed’ by the Court in Ontario, Jim will have authority to deal with the Canadian GICs and distribute them as per the terms of his uncle’s Will.
Jim’s situation is relatively straightforward. However, depending upon the size and nature of the assets, where they are held, and whether or not the deceased had a Will, this isn’t always the case. There are different legal systems around the world and complying with the requirements of each jurisdiction can be challenging and delays are inevitable.
With the exception of Quebec, Canada is a common law jurisdiction as are most Commonwealth countries including the United States of America, England, Australia, and India. Civil law jurisdictions include Quebec, Louisiana (the only civil law jurisdiction in the USA), many countries in Europe (such as Italy, France, Germany, Switzerland), most of South America and Africa.
Some countries may require that a Will be translated into the local language. Most countries require that real property in that country must be dealt with according to local laws. In a country with ‘forced heirship’ laws, the beneficiaries of an estate are determined by law and may override the beneficiaries named in a person’s Will. This can result in the terms of a person’s Will being ignored.
If you are an executor (or estate trustee) for the estate of a person who lived outside Ontario but had assets in Ontario or if you are an executor for the estate of an Ontario resident who owned foreign assets at death, make an appointment to meet with one of our lawyers at our office in Ottawa (Stittsville), Ontario, Canada or email us at [email protected]. We would be pleased to work with you on the estate and help make the process as straightforward as possible.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
