It is important to have a valid Will to avoid the challenges of intestacy – dying without a Will. Indeed, eventually, everyone ends up with a Will of one sort or other, either the deceased gets to decide how assets are distributed by writing one before death or the provincial authorities get to decide based on intestacy rules. So, it’s always best to get a Will written in advance.
The question is, do you need more than one? Getting one Will is trouble enough, so why would anyone want to have two? The reason for having more than one has to do with the kind of assets you own and what you want to have done with them when you die. The decision to have a second Will has to do with whether all of your assets have to go through the process of probate.
What is probate?
Probate is simply the process of proving that a Will is drafted properly and is valid. For this, most provinces charge a probate fee. B.C. and Ontario charge 1.4% and 1.5% of the probated estate respectively, while other provinces charge less or flat fees.
Sometimes people will try to evade probate fees by entering into arrangements such as transferring assets into joint ownership. This and other similar arrangements can potentially lead to problems and more expense. The most effective way of avoiding probate fees is to reduce the assets exposed to them. For example, using beneficiary designations for your life insurance and registered plans (where available) is very effective.
It is also true that not all assets have to pass through probate. The most obvious of these assets are shares that a taxpayer owns in a private corporation. Before explaining this further, let’s look at the two types of Wills.
The General or Primary Will
This refers to the Will that everyone thinks of. It includes all of the assets that normally fall into a Will and are subject to probate. Keep in mind that General or Primary Wills, once probated, become public and anyone who has an interest or desire can obtain a copy. In fact, in BC the Archives provide a research guide to probated Wills to help people who want to get a copy and in Ontario, the probate court staff will provide assistance to locate copies of Wills so the inquisitive can view all documents and get copies. There is a fee but that is the only requirement.
The Restricted or Secondary Will
The Restricted or Secondary Will references only certain assets that do not require probate to pass to the estate and heirs – again, most commonly shares in private corporations but could also include some other assets such as those in other jurisdictions or provinces.
The reason that shares in a private corporation need not be probated is that the remaining directors of a private corporation may usually transfer the corporate interest to the estate and subsequently to the beneficiaries of the estate without an application for probate. The specific rules regarding this may differ by province but the result of by-passing probate is generally achieved.
Unlike a General or Primary Will, a copy of a Restricted or Secondary Will, since it is not probated, is not kept with the probate registrar. This gives rise to the nickname of a Secret Will since the term of these Wills are not public record. This can be very important to a business owner that may not want the general public to know what happens with his or her corporate holdings.
Why can Secondary Wills be Important?
They are used to pass assets without paying probate fees. As a result, there is a cost savings to the estate which could be substantial.
Secondary Wills are very effective in keeping confidentiality regarding the assets which are not subject to probate.
Advantages and Disadvantages
While Multiple Wills may seem appealing, consider both the advantages and disadvantages.
While privacy and lower costs are important it is also vital to remember that there are now two Wills to pay for, a more complex situation exists because you must have two different executors, and the executor under your Secondary Will should be capable of dealing with the complexities inherent in the assets under that document.
While there was a challenge in Ontario to this type of planning that resulted in a threat to multiple Wills by a court decision (see Milne Estate), that decision was reversed by a higher court in 2019. As of the date of this article, secondary Wills remain a viable estate planning option.
As with any estate planning, no action should be taken without the advice of a competent legal and accounting advisor.
Reference to STEP Canada Vancouver seminar material “Tips and Traps of Probate Planning” and STEP Trust Quarterly Review, Volume 17, Issue 1, 2019
