When a testator has multiple Wills, he or she has a primary Will and a secondary Will and possibly additional Wills to deal with different asset types or property held in different jurisdictions. Assets that require probate to be administered (for example real estate) are dealt with in the primary Will and probate fees are only to be paid on the value of those assets. In the secondary Will, assets are transferred to the beneficiaries without the need for probate in Ontario. The idea behind multiple Wills is to separate those assets requiring probate from those that do not, to avoid paying probate fees on assets that do not otherwise require it.
Assets typically dealt with in a Primary Will:
- Assets registered in a single name such as:
- individual non-registered investment, savings and chequing accounts;
- real property registered solely in the name of the testator; and
- personal property (e.g. automobile, boat, plane) registered solely in the name of the testator;
- Registered plans and insurance where a beneficiary is not named or the estate is the named beneficiary.
- Assets that do not have a registered title;
- Shares in private corporations and related shareholders' loans and receivables;
- Household goods and personal items (except those held in a safety deposit box which may require probate to access the box); and
- Unsecured debt.
Assets dealt with in other wills
Because foreign assets are dealt with in the foreign jurisdiction and they may be subject to estate administration tax there, some testators with foreign assets have a third or fourth Will to deal with each of these foreign assets separately. An individual may make any number of Wills to deal with different types of property, provided these can each be shown to be distinctly separate documents that do not conflict with or revoke each other.
Benefits of Multiple Wills
Having more than one Will can allow you to minimize the estate administration tax by requiring probate only for those assets that cannot be transferred without probate. Without having multiple Wills, probate fees would have to be paid upon the value of the whole estate in Ontario regardless of whether probate is required to transfer an asset. The probate fees saved from having multiple Wills can result in a substantial sum of money. Under the Estate Administration Tax Act, 1998, the amount of tax payable is $5 per thousand of assets up to $50,000 (i.e., $250) and $15 per thousand thereafter. For a $1 million estate, the tax would be $14,500 and for a $2 million estate it would be $29,500.
Multiple Wills have also been attractive for income tax savings. An estate is considered to be a trust for tax purposes, like an individual, it has been subject to graduated tax rates. The Minister of Finance announced a proposal to eliminate these graduated tax rates for trusts in 2016, but first gave estates a 36 month period of graduated rates before they are taxed at top rates.
Proceeding with Multiple Wills
It is important to seek legal advice if you wish to draft multiple Wills. A Wills and estates lawyer in Ottawa at Merovitz Potechin LLP will ensure that the Wills are properly prepared and your estate is carefully planned. You will need the Wills precisely drafted to ensure each Will refers to the other, does not conflict with the other, and that one Will does not revoke the other. You may also want to ensure the estate trustees and beneficiaries in the Wills are the same (if there are no foreign property) or can work together, as each estate trustee obtains authority from the Will for those assets only.
Contact us at Merovitz Potechin LLP
If you are interested in having multiple Wills prepared for your estate plan, contact an estate lawyer in Ottawa at Merovitz Potechin LLP. We prepare multiple Wills as one of the many estate planning strategies available to you. We can review your situation and advise you on how you can best minimize your probate fees and other taxes in your Will(s) and/or through trusts. For more information or to book your consultation, contact your Ottawa estate lawyer at 613-563-7544.