Strategic Use of Multiple Wills in Canadian Estate Planning: Navigating Probate Fees

Creating multiple wills is a practice that has been associated with estate planning in Canada, particularly in provinces like Ontario for the last 20+ years.  The primary reason people create multiple wills is to minimize the amount of probate fees that their estate would be subject to upon their passing and an element of privacy to the family and the estate as it allows for the will not to be probated.

In several Canadian provinces, like Ontario, the strategy of employing multiple wills is utilized for estate planning purposes with the aim of effectively handling and reducing probate expenses. These documents are commonly denoted as the “Primary Will” and “Secondary Will,” “Probate Will” and “Non-Probate Will,” or “General Will” and “Specific Will.” The specifics of how multiple wills are established and the criteria they must meet can diverge between provinces. However, the central concept revolves around segregating assets that necessitate probate from those that do not.

Assets that typically do not require probate include:

• Private company shares
• Unlisted debt obligations
• Personal effects
• Interests in partnerships or joint ventures

These assets can be included in the secondary will to avoid the probate process, which can save both time and money. The primary will would deal with assets that require probate, such as real estate.

What are probate fees?

Probate fees are generally calculated as a percentage of the total value of the assets that go through the probate process. By having multiple wills, individuals can allocate their assets strategically between these wills. Typically, they would have one will that covers assets that need to go through probate (such as real estate and publicly traded stocks), and another will that covers assets that can be transferred directly to beneficiaries without going through the probate process (such as privately held company shares or certain personal property).

It’s important to note that the practice of using multiple wills is not universally accepted in all provinces and jurisdictions in Canada. The legality and effectiveness of this strategy can vary, and there have been legal challenges and debates surrounding the use of multiple wills for estate planning purposes. The provinces in Canada that have allowed the concept of multiple wills are Ontario and British Columbia.

Examples of how multiple wills can be used to minimize probate fees : Primary will and secondary will

Scenario:

Alice is a wealthy individual with assets totaling $10 million, including her primary residence, investment properties, stocks, and various personal possessions. She lives in a jurisdiction where probate fees are significant, and they apply to the total value of her estate.

Primary Will:

In her primary will, Alice lists assets that typically go through probate, such as her primary residence, some personal possessions, and certain investments, totaling $4 million. This primary will is designed to cover assets that must go through the probate process for legal reasons or practical purposes.

Secondary Will:

In her secondary will, Alice lists assets that can potentially avoid probate, such as privately held corporations, and other assets that can be transferred directly to beneficiaries without going through the probate process, totaling $6 million.

Minimizing Probate Taxes:

When Alice passes away, her primary will undergo probate, and the assets listed in it are subject to probate fees, based on the jurisdiction’s tax rates. In this example, the primary will, with assets worth $4 million, would incur a significant probate fee liability. However, the assets listed in her secondary will bypass the probate process altogether and go directly to the named beneficiaries. Therefore, they are not subject to probate fees.

By using this multiple wills strategy, Alice has effectively reduced the value of her estate subject to probate fees from $10 million to just $4 million, resulting in substantial savings for her beneficiaries.

Instances where a secondary will might require probate

While the primary goal of a secondary will is to minimize probate requirements for certain assets, whether or not those assets require probate can depend on various factors, including local laws, proper drafting, and the nature of the assets. It is essential to work closely with legal professionals who are experienced in estate planning and familiar with the specific laws in your jurisdiction to ensure that your estate plan achieves your intended objectives.

Benefits of obtaining probate

While certain assets may not necessitate probate for ownership transfer and can be included in a secondary will, obtaining probate can still be advantageous for three reasons:

1. Commencing probate initiates the countdown for potential claims against the estate. Some specific demands against the estate may have a limited timeframe within which they can be pursued.
2. Obtaining probate also serves as protection for the executor. In cases where a will hasn’t undergone probate and is subsequently declared void, the executor might face potential personal liability towards the rightful beneficiaries.
3. Securing probate provides safeguards for external entities, such as banks and brokerages, by offering verification that they are engaging with the individual duly authorized to represent the deceased’s estate. This safeguard ensures proper asset handling and prevents unintended transfers to unauthorized recipients.

Looking to set up multiple wills? Here is a quick reference guide:

1. Consult an Estate Lawyer: Work with an experienced estate lawyer who is familiar with the laws in your specific province. They can guide you through the process and draft the necessary documents.
2. Identify Non-Probate Assets: Determine which of your assets can be included in the secondary will to avoid probate.
3. Draft the Wills: Your lawyer will draft both the primary and secondary wills, ensuring that they are legally sound and tailored to your specific situation.
4. Execution and Witnesses: Both wills need to be properly signed and witnessed according to provincial laws. The signing process might differ depending on the province.
5. Keep the Wills Safe: Store the wills in a secure place and let your loved ones know where they can be found. Inform your executor(s) about the existence and location of both wills.
6. Regular Review: It’s important to review your wills periodically, especially when there are significant changes in your assets, family situation, or the law.

The multiple wills strategy brings much value and can help you reduce probate fees payable on your death. Remember that estate planning is a complex matter, and the information provided here is a general overview. Laws and regulations related to estate planning change over time, so it’s crucial to consult with professionals who are knowledgeable about the specific laws in your jurisdiction before considering this approach. To speak more in detail around succession planning and Multiple Wills, please reach out to your Zeifmans advisor or email us as info@zeifmans.ca.