Apr 26, 2024
In my previous blog about probate, we discussed what “probate” or a “Certificate of Appointment of Estate Trustee” is, and the different residency and security requirements for probate in Ontario, depending on whether the deceased person had a Will. Sometimes, clients will come to us having already obtained probate or been appointed as estate trustee in a jurisdiction outside of Ontario, then discovering that the deceased owned a bank or investment account in Ontario and needing Ontario probate to get that asset liquidated. In today’s global landscape, we are encountering these situations with increasing frequency.
Where the deceased did not have an Ontario Will, the Estates Act provides that estate trustees can apply for a “Resealing of Appointment of Estate Trustee” or an “Ancillary Appointment of Estate Trustee” in Ontario. Resealings and ancillary appointments have the same effect of recognizing the foreign grant of probate in Ontario as if it were originally granted by the Ontario Superior Court of Justice. In other words, a resealing or ancillary appointment will provide the estate trustee with authority to act on behalf of the estate in Ontario and administer the Ontario assets. The difference between the two is where the original grant of probate was obtained.
Where the applicant was appointed as estate trustee by a court (a) outside of Ontario but within Canada, or (b) outside of Canada but in a Commonwealth country, they should seek a Resealing of Appointment of Estate Trustee. The applicant does not have to be an Ontario resident, and their foreign estate trustee appointment could have been made with or without a Will. A bond is required unless the original grant of probate was made with a Will and the applicant is a resident of Canada or elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.
If the applicant was appointed as estate trustee by a court that is not part of the Commonwealth, they should seek an Ancillary Appointment of Estate Trustee. The applicant does not have to be a resident of Ontario. A bond is required unless the applicant is a resident of Canada or the elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.
If you find yourself unsure about what kind of probate to apply for or which forms to submit, feel free to reach out to our team and schedule a consultation with us.
Zara Wong
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Mar 7, 2024
I am grateful to Jan Goddard and Yasmin Vinograd for inviting me to be a panelist at the Annotated Guardianship Application program on March 6, 2024. They obviously put a lot of thought and care into choosing interesting topics and great speakers. Each time I participate in the program, I end up learning new things from the other speakers and panelists:
Meredith MacLennan offered three tips for registering guardianship orders on title. Guardianships sometimes arise in situations where the vulnerable person is already being financially exploited. As a guardianship lawyer, I have seen unfortunate situations where vulnerable adults have signed paperwork that is manifestly against their best interests at someone else’s behest. Even with a guardianship order in place, there is nothing stopping a wrongdoer from manipulating an incapable person into signing documents to take out a mortgage or transfer title. Registering the guardianship order on title gives notice to anyone seeking to lend or purchase the home that the owner has a substitute decision maker. However, I learned yesterday that from a conveyancing perspective, this is not as easy as it sounds. Meredith’s top tip was to ask the court for a stand-alone order to register on title because the standard Judgment appending a management plan will not be accepted for registration.
Arthur Fish and Alexander Procope spoke about how to help litigants find an off-ramp from the destructive road of guardianship litigation through alternative dispute resolution. I especially valued Arthur Fish’s insights about delving into the family history of high-conflict/low resolution families to uncover the trauma that is truly driving the family conflict.
Various speakers answered some tough questions from the audience, like whether “joint and several” guardianship appointments are possible (Lisa Filgiano clarified they are not). Doreen So shared an example from her own practice where she came up with a creative partial guardianship solution when a Florida property could not be transferred utilizing an Ontario power of attorney.
The program was chock full of practical advice on how to do a guardianship application from the first meeting with the client through to closing your file. The annotated precedents have been expanded over the years to include a retainer letter, a Notice of Application, an affidavit, a management plan, a guardianship plan, a closing letter, and a Judgment. The program is still available for viewing through the LSO, and I highly recommend it.
Angela Casey
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Feb 28, 2024
When I first started working with Angela Casey, she had a small, dog-eared poster of a car and a bike on her office wall. Under the picture of the car were the words “this one runs on money and makes you fat” and under the bike was written (you’ve guessed it), “this one runs on fat and saves you money”. A silly saying that stuck in my mind as I observed my co-worker energized and happily commuting by bike while I dragged myself to and from the bowels of the subway. Intrigued though I was, I thought it would be too difficult for me to bike from Etobicoke.
In 2013, I had just come back from a second maternity leave after having my son. Like many new parents, I was feeling pretty defeated by a lack of personal time. I was out of shape. Despite a supportive spouse, I couldn’t find my way around getting to a gym or carving out time to workout at home. So I bought a cheap bike and planned out my route.
The first ride was hard. I had to stop midway to catch my breath. But I was also exhilarated: speeding along Lake Ontario, a sunny, perfect June day, feeling stupidly accomplished and content. More than a decade later, despite the occasional spill and stolen bike seat, biking to the office is usually one of the best parts of my day. There is something about exercising and being outside that lifts the mood and clears the mind.
Each year, Baycrest raises funds for dementia research through a charity bike ride on the Gardiner and DVP. Research is continuing to establish that there is a connection between exercise and brain health, so the event is a fitting one. Our firm has participated the last two years and we’ll do so again this year. Some of our family members are participating too. My 11 year old son is already talking about the tasty corporate team buffet at the end. Whatever gets you motivated to get moving is a good thing IMHO.
Angelique Moss
Partner, Casey & Moss LLP
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Feb 13, 2024
Completing the Estate Information Return
Congratulations! You have finally received your issued Certificate of Appointment of Estate Trustee from the court. Now it is time to get your hands dirty and administer the Estate. (While you may have been able to take steps before this time, financial institutions may not recognize your authority until you have a Certificate of Appointment.)
Along with the issued Certificate of Appointment, the court will also provide you with a notice about a form called an Estate information Return (“EIR”). An Estate Information Return must be filed with the Ministry of Finance within 180 days of the date of the Certificate. It is used to enforce compliance with the Estate Administration Tax Act.
The EIR lists details of all the Deceased’s assets and their date of death values. For example, if the Deceased owned a property at the time of their death, you would have to obtain the Deceased’s address, property assessment roll number and property identifier number (PIN). If the Deceased had bank and/or investment accounts, you would need to list the account numbers and contact information for those institutions. If the Deceased had a vehicle, you would have to list the vehicle identification number, make, model and year of that vehicle. The form also requires you to list all other assets such as personal effects and refund cheques that the Deceased may have been entitled to at the time of their passing.
The EIR also gives the estate trustee the opportunity to mention any asset that was missed or discovered after the Application for a Certificate of Appointment was submitted with the court and it allows the estate trustee to pay the applicable estate administration tax for those assets.
It is good practice to diarize the deadline to file the EIR so you won’t miss it!
You can find the form for the EIR along with a guide to assist you here: https://forms.mgcs.gov.on.ca/en/dataset/9955
If you are unable to obtain all asset information within the 180 days deadline, don’t worry, you can file an amended return which would be due within 60 days of the estate trustee becoming aware that the information on the initial return is inaccurate.
If you need help, contact Casey & Moss
Felicia Cyril
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
