Outside Canada

When a friend or family member dies, it can be a difficult, emotional time. If you’re in Canada and the deceased is in a foreign country, or owned property in one, it can create unusual complications in winding up the estate.

The Challenges of Foreign Jurisdictions

If you are the executor or a family member working with the executor to wind up the estate, it is reasonable to expect complications and delays and, likely, frustration.You may need to seek professional help to navigate some of the challenges of winding up an estate in a foreign jurisdiction.

The wind-up of the estate may be affected by the laws of the jurisdiction in which the deceased died and in which the deceased held property. In some cases, jurisdictions may not allow foreigners to act as executors.

It will likely be helpful to compile the following:

  • Documentation attesting to the deceased’s nationality, domicile (where he/she is deemed to be a permanent resident) and residence.
  • Documentation indicating types of property owned, where the property is situated (in one or multiple jurisdictions) and where the deceased was domiciled.
  • Documents related to original will or wills, or did the deceased die intestate? Are there multiple wills or just one? Do they effectively address property owned in each jurisdiction?

Property and Succession

When you are documenting the property, you may need to subdivide the property into movable and immovable property.

Movable property refers to personal property that is not definied as immovable. This includes investment accounts. In the case of movable property, succession is determined by the laws of the country where the deceased was domiciled.

Immovable property refers to real property and interests in land. In the case of immovable property, succession is governed by the laws of the jurisdiction where the property is located. This includes determining who can or cannot represent the deceased.

Executor/personal representative may not be qualified to act in foreign jurisdictions (such as if residency requirements are not met).

Did You Know?

Succession is governed by the rules of the jurisdiction. In common-law jurisdictions, the following provisions may apply.

1. When there is a will

  • Does it cover all worldwide assets? Probate where deceased was domiciled and attempt to obtain an ancillary grant of probate in jurisdictions where immovable property is located.
  • Obtain legal advice in each jurisdiction in which the deceased owned property:
    • Was a will drawn up in that jurisdiction?
    • Can a personal representative qualified in that jurisdiction be appointed?
  • Determine if any assets cannot be disposed of by a will (for example, civil-law jurisdictions).

2. When there is no will

  • Intestate regulations in each applicable jurisdiction apply:
    • Address both movable and immovable property.
  • A qualified personal representative must be appointed.