Double Wills – Primary (Public Asset Will) and Secondary (Private Asset Will)

 In Wills and Estates Law

Preparing double wills is an estate planning technique which minimizes the amount of probate fees (estate administration taxes) payable on death by your estate.

The purpose of “probate” is to certify that a Will has been duly proven and registered in the Court and that the administration of the deceased’s property has been committed by the Court to the persons named as estate trustees in the Will.

To obtain probate, the Ontario Government charges an estate administration tax of $5.00 per $1,000.00 (or part thereof) on the first $50,000.00 of estate value and $15.00 per $1,000.00 (or part thereof) on the estate value in excess of $50,000.00.

For clarification purposes, please note that reference to “estate assets” refers only to assets which are registered solely in the deceased’s name and do not have a named beneficiary. There is no requirement to include in the value of the deceased’s assets the following:

  1. Real estate, GIC’s, Canada Savings Bonds, or any other assets registered in the name of the deceased and his/her spouse, as joint tenants or jointly with right of survivorship. Joint ownership is defined as two or more parties holding title or ownership to the property or asset where each holds the same interest as the other. Upon the death of one owner, the surviving co-owner(s) acquires the interest of the deceased co-owner regardless of the provisions of the Will.
  2. RSP’s, RIF’s, TFSA’s, Annuities and Life Insurance policies which have a named beneficiary. Unless a contrary intention is contained in the Will and the intention has been made pursuant to the provisions of the Succession Law Reform Act or the Insurance Act, a named beneficiary is entitled to the proceeds of the asset, regardless of the provisions of the Will, and its value is not considered an “estate” asset for probate purposes.

The Ontario Rules of Civil Procedure provide for applications for probate to be made “limited to assets referred to in the Will”. Therefore, it is possible to exclude the value of shares and/or assets of private corporations and other assets which do not require probate to pass to a beneficiary by the preparation of separate Wills for these assets.

Depending on the nature of a person’s assets, it is often beneficial to have a “primary” Will to deal with real property and assets held in financial institutions (public assets) and a “secondary” Will to deal with assets held in a private corporation, personal effects, vehicles, the proceeds of life insurance policies payable to the estate and any other asset which does not require probate to pass to a beneficiary (private assets).

Using this estate planning technique, if probate is necessary to deal with real estate and the assets held in a financial institution, probate fees would be payable only on the value of the public assets as limited in the primary Will. Since the assets in the secondary Will would not require probate there would be no requirement to pay probate fees on the value of these assets.

This blog post was written by Heather Austin-Skaret, a Partner in the Wills and Estates and Real Estate teams.  She can be reached at 613-369-0356 or at Heather.Austin-Skaret@mannlawyers.com.

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