Estate Trustee outside of Ontario

Can someone who lives outside Ontario act as the trustee of an Ontario estate?  If there is a Will, then Yes.

Should they?  Maybe.

No Will: Trustee Residence Requirements

When there is no Will, the estate is governed by the rules of intestate inheritance in Ontario.  As a general rule, the estate trustee for an interstate estate must be resident in Ontario.

With a Will – Legal and Practical Considerations for a non-resident trustee

If an individual is named as an executor in a Will, they can apply to be the trustee of the estate in Ontario, even if they do not live in Ontario.

Bonding Requirements

A key consideration is whether bonding is required for the estate trustee in the probate application.  Some non-resident trustees will need to post a bond, or apply for a Court order dispensing with a bond.  Neither of these is impossible, although they do usually add some complexity, cost and delay to the probate application.  The details of the bonding requirements depend on such factors as whether bonding is expressly dealt with in the Will, where the trustee resides and whether the estate of the deceased has already been probated in any other jurisdiction.

Income tax considerations

A potential concern for estate trustees who are not resident in Canada is the income tax treatment of the estate.  It is conceivable that if the majority of the estate trustees are not resident in Canada that the estate can be deemed to be non-resident of Canada which might trigger adverse income tax considerations (note that it might not be deemed  non-resident, or even if it is, the income tax considerations might not be adverse).

These problems usually do not manifest themselves if the ‘majority’ of the estate trustees reside in Canada.  Note that if there are two estate trustees and only one resides in Canada it may  be possible to argue that the estate remains resident in Canada.

Put another way, the time to be most

Dealing with assests – especially banks

It can be challenging for a non-resident trustee to deal with some assets of the deceased.  This is particularly true if the estate trustee is unfamiliar with Ontario, and does not intend to visit for the time necessary to administer the estate.  For instance, issues like cleaning out and selling a home, mail forwarding, and cancellation of credit cards are all a little more challenging when done from outside Ontario.  They can be done, although a visit of two to the Province will make it easier, faster and cheaper to administer the estate.

The most problematic issue for the non-resident trustee is likely Canadian banks, who are very backward with respect to estate matters.  They often refuse to verify the identity of an executor by any means except in-person attendance to the bank branch of the deceased. This is because of their own archiac processes and is not a legal requirement, but it can be very difficult for estate trustees to get around.  Note that this nonsensical position applies to almost everyone – even within the Province of Ontario – as estate trustees often live far away from the branch where the deceased banked.

Hire Agents

Often most of the estate can be administered by a non-resident trustee by hiring competent, trustworthy local agents.  We can help.

Renounce – with care

An option for a non-resident executor named in the Will is to renounce the role.  However, this should be done with care and only when the renouncing party is certain that the estate will be administered by a trustworthy trustee.  An executor should not be bullied into renouncing by an untrustworthy sibling.  Conversely, often hiring a qualified third party like our firm to administer the estate is the fastest, cheapest, and least stressful option.

Miltons Estate Lawyers – Probate, Wills, Trusts and Estate