What every immigrant should know about Cross-Border Probate in Ontario

In 2022, changes were made to the Succession Law Reform Act (the “SLRA”). These updates are still being reviewed, and lawyers are now seeing how they affect probate cases, especially those that cross international borders.

One big question is whether the new SLRA rules apply not only to primary grants of probate but also to resealing applications. In simpler terms, if someone is applying for probate from another country or province, would the same rules about separation and revoked rights still be applicable?

At first glance, it may appear that they do not. The Ontario courts' application forms for ancillary grants and resealing do not ask about separation. However, those for a primary grant currently do as courts still consider separation as a factor when deciding who is allowed to act as estate trustee.

A Refresher on the New SLRA Rules Under the new rules, if a surviving spouse was separated from the deceased on or after January 1, 2022, the SLRA revokes their right to be an estate trustee in the Will. A couple is considered separated if, when the person died, they were living apart due to the breakdown of their marriage and meet one or more of these conditions:

1. They lived apart for at least three years immediately before death.

2. They signed a valid separation agreement under the Family Law Act.

3. A court issued an order about their rights or property after the separation.

4. A family arbitration award was made settling their affairs under the Arbitration Act, 1991.

These events must have occurred on or after January 1, 2022. For example, if a couple separated in 2021, the new SLRA rule would not apply to them.

Ancillary Grants and Court Discretion When a person dies with assets in more than one country, their executor may need an ancillary grant to handle property in Ontario. Ontario courts can issue this type of grant when the foreign executor has the legal right to manage the estate under the law of the deceased’s home country. However, this power is optional, meaning, Ontario courts can refuse to issue an ancillary grant if the executor would not ordinarily qualify under Ontario law. So if a spouse’s right to act as executor was revoked under the SLRA, they likely would not qualify for an ancillary grant in Ontario, even if they were recognized as executor in another country.

Resealing Foreign Grants

A resealing occurs when an Ontario court officially recognizes a probate grant made in another jurisdiction, such as another Canadian province or country. The power to reseal is found in section 52 of the Estates Act, which says the judge may reseal a foreign grant “under the direction of the judge.” This means that judges have some discretion when deciding whether to reseal a foreign probate.

If the person applying for resealing was disqualified under Ontario law, for example, because they were a separated spouse, the court may refuse to reseal. However, if the original probate grant came from the court of the deceased’s domicile (the country or province where they lived permanently), Ontario courts are more likely to reseal it. If it came from a different jurisdiction, Ontario may refuse. Because of this, it may be better for a person whose appointment was revoked by the SLRA to first get a primary grant from the court of the deceased’s home country before asking Ontario to reseal it.

If an applicant requires a resealing or ancillary grant in Ontario, it will be necessary to check if they were separated from the deceased based on the 2022 SLRA rules. If the new law revokes the person’s right to act as executor, that issue must be addressed in their Ontario application. The safest approach is to confirm the person’s marital and separation status early and include those details clearly in the court documents.

In summary, Ontario courts still have the discretion to decide, but the SLRA now plays an important role in whether someone can be approved as executor in cross-border probate cases.

Key Considerations for Immigrants

When someone dies owning assets in more than one country, it may be difficult to administer their estate. To avoid these complications, it becomes necessary to proactively pursue estate planning with a lawyer who understands what the laws and courts require for successful court appointment. If an estate trustee was already appointed via a probate grant in another province, the United Kingdom, or a Commonwealth country, the executor can apply for a resealing of that grant to handle assets located in Ontario. If the original grant came from a non-Commonwealth jurisdiction, an ancillary grant must be obtained instead. Quebec and some European countries with civil law may not require resealing or ancillary grants.

In closing, probate confirms a Will’s validity, allows property transfers, and officially empowers representatives to administer the estate. You will need an estate lawyer with experience to represent you with this complex process. Yanique Russell Law has helped clients successfully reseal probate grants in Ontario courts. We offer a free 15-minute consultation and can help you understand what you need.

Sources:

1. Sanford, J. (2025, October 17). Cross-Border Probate in Ontario: The SLRA’s impact on ancillary and resealing grants. Hull & Hull LLP. https://hullandhull.com/2025/10/cross-border-probate-in-ontario/

2. André, N. (2025, May 29). Grant me this: Resealing and ancillary probate grants in Ontario for multijurisdictional estates. O’Sullivan Estate Lawyers LLP. https://www.osullivanlaw.com/2025/05/grant-me-this-resealing-and-ancillary-probate-grants-in-ontario-for-multijurisdictional-estates/#:~:text=Resealing%20vs%20Ancillary%20Grants%20in%20Ontario&text=A%20resealing%20grant%20is%20available,for%20all%20other%20foreign%20jurisdictions.&text=If%20the%20original%20grant%20of,the%20notable%20exception%20of%20Quebec.