Personal & Corporate Wills Probate Tax Savings Strategy

Commonly Used Strategies To Reduce Probate Fees Include The Following:

  • Holding property in joint name with right of survivorship (outside of Quebec).
    NOTE: Be aware that there are numerous problems associated with this strategy, especially where the joint owner is not a spouse .
  • Designating beneficiaries on RSP, RIF and life insurance plans.
  • Creating inter vivos trusts.
  • Making gifts during your lifetime.

Another method for minimizing probate taxes in at least one province (i.e. Ontario) is the use of multiple Wills. To understand how this strategy works, let us first understand the probate process.

Is Probate Required?

The main purpose of probating a Will is to validate the appointment of the executor (i.e., the person appointed in a Will to control and protect the estate’s assets, pay off any debts and distribute property as directed by the Will). Specifically:

  • Probate may be required before a legal change in ownership of real estate property can be made.
  • Probate can protect the executor and third parties from legal liability.

Third parties (e.g. financial institutions) often require probated Wills before they will accept instructions from the executor named in the Will.

If probate is required, then a probate tax ranging from 0% (Quebec) up to 1.5% (Ontario) of the value of the estate is generally payable.

Using The Multiple Wills Strategy Works

The strategy involves preparing two wills, one dealing with assets administered by third parties such as bank accounts, investment portfolios and real estate; and another designed for personally held assets such as personal effects and shares of a private company.

In Ontario, the use of multiple Wills is now accepted practice following the decision of the court case Granovsky v. The Queen. The judge in this case ruled that if a person dies with multiple Wills (with a common executor), the executor seeking probate is not obligated to probate all of the Wills. The executor has the option to probate whichever of the Wills of the deceased and probate taxes would apply only on the assets that were part of the probated Will. In other words, it is possible to segregate assets of an individual into multiple Wills:

  • A primary Will holding the assets that require the probate process.
  • A secondary Will holding the assets that do not require probate (e.g. privately held shares or personal properties).

The result is lower probate costs because only the assets of the primary Will are subject to the provincial probate tax.

Example

Fred, a widower with no children, lives in Ontario and owns an incorporated small business. The privately held corporation is worth $500,000. Fred owns his principal residence which is worth $350,000 (no mortgage), a valuable collection of a Group of Seven paintings worth $150,000 and he also has $100,000 in a non-registered investment account.

What are the probate taxes that will be payable on Fred’s death if he has only one Will versus multiple Wills?

Single Will

Probate Required Probate Not Required
House $350,000
Art Collection $150,000
Private Corporation Shares $500,000
Non-Registered Investment Account $100,000
Total Estate Value $1,100,000
Probate Taxes $16,000

 

Multiple Wills

Probate Required Probate Not Required
House $350,000
Art Collection $150,000
Private Corporation Shares $500,000
Non-Registered Investment Account $100,000
Total Estate Value $450,000 $650,000
Probate Taxes $6,250

 

*Ontario estate administration tax (the new name for probate fee in Ontario) rate is $250 on the first $50,000 of the estate value and $15 per $1,000 on the balance.

By using multiple Wills there is a probate tax savings of approximately $9,750 ($16,000 minus $6,250)!

Conclusion

If your goal is to reduce probate taxes, using multiple Wills may be something you want to consider. However, it is important to note that probate taxes are based on provincial statutes and since this strategy is based on an Ontario court decision, other provinces may specifically disallow this strategy within their own legislation. Nova Scotia for instance, has specifically included in their probate legislation clauses that will render the use of multiple Wills an ineffective planning strategy.

It is important to weigh the costs of preparing multiple Wills against the benefits. If you reside in a province that has very low probates taxes such as Alberta there may not be a need for this type of strategy.

Finally, careful drafting of Wills is critical to the successful use of this technique. In particular, care must be taken to ensure that the Wills do not unintentionally revoke each other. It is also necessary to ensure that the appropriate assets are included in each Will. If just one asset in the secondary Will requires probate (for instance, if an investment account at a brokerage is mistakenly included in the secondary Will ), it may taint the entire Will. Probate will then apply on every asset the deceased wished to shelter.

It is imperative that you discuss the use of multiple Wills with your legal advisor to determine if this strategy is valid in your jurisdiction.

Joe Truscott has been assisting clients with their personal and business related Will planning matters for over 30 years and has a substantial amount of knowledge of utilizing multiple Wills to minimize probate fees. Joe has also worked with our corporate base of clients and their corporate attorneys and is very familiar with the steps and procedures of preparing a Will and has assisted in the design of Wills for very special circumstances. If you wish to engage Joe Truscott to review your Will, kindly contact him at joetruscott@josephtruscott.com, or call our office at 905-528-0234 ext: 224.

October 2012