People are often surprised that you can have more than one valid will. It is possible so long as they don’t attempt to distribute the same assets.
In Ontario there is a cost to have the court assign the right to deal with property to the executors of the estate. Probate is often used as the term of choice. The idea is that the executors, (estate trustees) need legal authority to act. You cannot sell some assets without probate, you cannot transact business with a bank or a similar institution without it.
The Estate Administration Tax, appropriately called EAT, is 1.5% of value and can quickly become something substantial if the value of the asset is large enough. A family business, a farm, or a cottage, can impose a cash drain on the estate.
Not every asset requires probate. A second will can help solve the problem.
Think about what you own that you could sell without any registration of it or the demands of an intermediary like a bank or stock broker. There are quite a few. The Picasso in the living room, the classic cars in the garage, the shares in a family business, loans to your corporation or others. And sometimes real estate.
This is vastly oversimplified and you should ask your lawyer for help.
You put all the assets that require probate in one will and all the assets that don’t in a second will. The wills both contain references to the other so that one does not revoke the other. Upon death, the will that distributes assets that do not require probate is not submitted to the court and the other is.
The savings can be substantial. I have a client with a cottage worth about $4 million, a home worth about the same, and a valuable business. The potential saving is more than $300,000.
In BC and Ontario there is court precedent for the method.
In Ontario, title is now recorded in the Land Titles Conversion Qualified (LTCQ) system. If your property is in that system you need probate. Except for an exception that you requires legal advice to be sure you qualify. The exception applies if your property was originally acquired in the older Land Registry System and there is uninterrupted registration since. You can get a “First Dealing Exemption” that makes probate inapplicable.
This is not for amateurs, so check with people who know and can prove the ability to make the first dealing exemption. There are more people who qualify than claim the exemption.
Some older people consider putting real estate in joint tenancy with children to avoid probate costs. That has risks, and may not be necessary.
Check. You might not need a second will to use the exemption.
What if you own property outside Ontario? Maybe in Florida, the islands, or in the country from which you emigrated? Even another province.
Your single will may not be valid everywhere, then what happens? You can be sure of just two things. It will be more costly, and it will take longer.
Would it not make sense to have such properties each in their own will. Then you could reduce the costs and probate the pieces as needed without tying up the other parts of your estate.
Again, be sure to use qualified people. They will understand the rules on wills and distribution on death in that country. Those can be vastly different than here.
Maybe just one, certainly not zero. Depending on your situation, you might need one for assets needing probate in Ontario, One for assets in Ontario not needing probate, and one for each jurisdiction outside Ontario. That could be quite a few.
Check it out if you think it is worth the trouble. Think first about potential delays and the the price. In most cases, the price is not huge compared t0 the estate.
The law is often not intuitive. Knowing some details can matter.
The biggest estate problems involve costs and delay. Delay being the most important for the heirs.
If you think there is potential here, check with skilled lawyers.
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I build strategic, fact-based estate and income plans. The plans identify alternate ways to achieve spending and estate distribution goals. In the past, I have been a planner with a large insurance, employee benefits, and investment agency, a partner in a large international public accounting firm, CEO of a software start-up, a partner in an energy management system importer, and briefly in the restaurant business. I have appeared on more than 100 television shows on financial planning have presented to organizations as varied as the Canadian Bar Association, The Ontario Institute of Chartered Accountants, The Ontario Ministry of Agriculture and Food, and Banks – from CIBC to the Business Development Bank.
Be in touch at 705-927-4770 or by email at email@example.com