Primary and Secondary Wills in Ontario

Primary and Secondary Wills may be used where a person owns different types of assets, including assets that may be administered without probate.

Nobari Law Professional Corporation reviews whether this estate-planning strategy may be appropriate based on the person’s assets, circumstances, and objectives.

Primary and Secondary Wills are two separate Wills prepared for the same person.

Each Will applies to a different group of assets:

• the Primary Will generally deals with assets for which the estate trustee may need to obtain probate; and
• the Secondary Will generally deals with assets that may be administered without a Certificate of Appointment of Estate Trustee.

The two Wills must be carefully coordinated so that one does not revoke or conflict with the other and each Will clearly identifies the assets and estate matters it governs.

A Primary Will generally governs assets for which banks, financial institutions, land registry offices, purchasers, or other third parties may require formal proof of the estate trustee’s authority.

Depending on the circumstances, Primary Will assets may include:

• bank accounts held solely in the Will-maker’s name;
• publicly traded investments;
• real estate that cannot be sold or transferred without probate;
• investment or financial accounts for which the institution requires a Certificate; and
• other property that cannot practically be administered without probate.

The estate trustee named in the Primary Will may need to apply to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee with a Will Limited to the Assets Referred to in the Will.

Whether probate is required depends on the asset, its ownership, and the requirements of the person or institution dealing with it. Each asset should be reviewed before it is assigned to either Will.

A Secondary Will generally governs assets that may be administered or transferred without obtaining probate.

Depending on the individual’s circumstances, these assets may include:

• shares in a privately held corporation;
• shareholder loans owing to the Will-maker;
• certain interests in a family business or partnership;
• personal belongings and other tangible personal property; and
• other assets that the relevant person or organization will permit the estate trustee to administer without an estate certificate.

An asset’s inclusion in a Secondary Will does not guarantee that probate will never be required. Ownership records, corporate documents, agreements, and third-party requirements must be reviewed.

Estate Administration Tax generally applies when an Ontario estate certificate is applied for and issued. The tax is calculated using the value of the estate assets included in the application.

With properly prepared Primary and Secondary Wills, the estate trustee may apply for probate only in relation to the Primary Will and the assets governed by it.

If the Secondary Will assets can be administered without probate, their value may not need to be included in the application. This may reduce the Estate Administration Tax payable by the estate.

The potential benefit depends on:

• the value of the Secondary Will assets;
• whether those assets can actually be administered without probate;
• the additional cost of preparing and maintaining two Wills;
• the complexity of the estate plan; and
• whether the arrangement remains appropriate as the person’s assets change.

Primary and Secondary Wills are not intended to eliminate income tax, capital gains tax, corporate tax, or other taxes that may arise following death.

A person may own:

• a home registered solely in their name;
• personal bank and investment accounts;
• shares in a privately held Ontario corporation;
• a shareholder loan owing to them by the corporation; and
• personal belongings.

Their Primary Will might govern the home, bank accounts, and publicly traded investments if those assets require probate.

Their Secondary Will might govern the private corporation shares, shareholder loan, and personal belongings if those assets can be dealt with without a Certificate.

Whether this arrangement is suitable depends on the corporate records, shareholder agreements, asset ownership, and third-party requirements.

Primary and Secondary Wills may be worth considering where a person owns assets of significant value that may not require probate.

This may include individuals who:

• own shares in a private or professional corporation;
• are owed substantial shareholder loans;
• own an interest in a family business;
• hold valuable personal property or other assets that may be administered without probate; or
• may benefit from appointing different estate trustees for different assets.

The potential Estate Administration Tax savings should be compared with the additional legal work, record-keeping, and administration involved.

No. Private-company shares are a common reason for preparing Primary and Secondary Wills, but the strategy is not limited to business owners.

A person who owns valuable personal property or other assets that can be administered without probate may also wish to explore whether two Wills would be beneficial.

However, for a person with a straightforward estate and few assets that can be administered without probate, one properly prepared Will may be more practical.

Yes. A person may appoint the same estate trustee under both Wills or appoint different estate trustees for different groups of assets.

For example, a family member may administer the general estate under the Primary Will, while a business associate or another person familiar with the company administers the private corporation interests under the Secondary Will.

Where different estate trustees are appointed, the Wills should address how they will coordinate debts, taxes, expenses, gifts, and distributions.

The Primary and Secondary Wills may name the same beneficiaries or different beneficiaries.

For example, a person may leave the residue of both estates to the same family members while making particular gifts of business interests or personal property under the Secondary Will.

The Wills must clearly identify:

• which assets and beneficiaries are governed by each Will;
• which estate is responsible for debts, taxes, and expenses;
• how gifts will be funded; and
• how the remaining property under each Will will be distributed.

Careful coordination is important to avoid inconsistent instructions or unintended results.

A standard Will often revokes all earlier Wills. That language can create a serious problem when two Wills are intended to operate at the same time.

Each Will must be drafted so that it does not revoke the other. The documents must also clearly divide the assets they govern and coordinate responsibility for debts, taxes, expenses, gifts, and distributions.

For this reason, one Will should not be changed without reviewing both documents.

No. The strategy may reduce Estate Administration Tax, but savings cannot be guaranteed.

Probate may later be required for a Secondary Will asset if:

• a corporation, institution, or purchaser requires an estate certificate;
• ownership records are incomplete or unclear;
• the asset changes form or ownership;
• the asset was assigned to the wrong Will; or
• another legal or administrative issue arises.

A person’s Wills and asset structure should be reviewed periodically to confirm that the intended division continues to work.

The Wills should contain clear definitions and provisions addressing assets that do not fall neatly within one category.

Uncertainty about which Will governs an asset may delay the estate administration and create additional legal costs.

Preparing the Wills may require a review of:

• corporate, shareholder, or partnership records;
• bank and investment accounts;
• real-estate ownership;
• shareholder loans;
• beneficiary designations; and
• valuable personal property.

Accountants, corporate lawyers, financial advisers, or other professionals may also need to be consulted where tax, corporate, or valuation issues arise.

Yes. Anyone considering a Primary and Secondary Will structure should provide all existing Wills, codicils, shareholder agreements, and relevant estate-planning documents for review.

The Wills should also be reviewed following:

• a business incorporation, sale, or reorganization;
• a change in corporate shares or shareholder loans;
• the purchase or sale of significant property;
• a change in personal or corporate asset ownership;
• marriage, separation, or the birth or adoption of a child;
• the death of an estate trustee or beneficiary; or
• a move to another province or country.

Changes to either Will should be made only after considering how the amendment will affect the other Will.

Primary and Secondary Wills apply after death. Powers of Attorney authorize another person to make certain decisions during the Will-maker’s lifetime.

An estate-planning package may also include:

• a Continuing Power of Attorney for Property; and
• a Power of Attorney for Personal Care.

Each document serves a separate purpose and should reflect the individual’s instructions and circumstances.

Nobari Law Professional Corporation provides personalized assistance and clear, upfront pricing for preparing Primary and Secondary Wills in Ontario.

Our services may include:

• reviewing the individual’s objectives, assets, and existing estate documents;
• identifying assets that may or may not require probate;
• reviewing private corporation shares, shareholder loans, and relevant corporate records;
• determining which assets may be governed by each Will;
• preparing and coordinating the two Wills;
• discussing estate trustees, beneficiaries, gifts, debts, taxes, and expenses;
• providing signing and witnessing instructions; and
• recommending advice from an accountant, corporate lawyer, appraiser, or other professional where appropriate.

Every estate plan is different. The suitability of Primary and Secondary Wills depends on the individual’s assets, ownership structure, family circumstances, and estate-planning objectives.

To begin, complete the Estate Planning Intake Form. The form allows Nobari Law to review your circumstances and identify any additional documents or information that may be required.

Do not send original documents, identification, complete account numbers, passwords, medical records, or other sensitive information unless requested by Nobari Law Professional Corporation. If requested, please use the document-sending method confirmed by the firm.

Submitting the form does not create a lawyer-client relationship or confirm that Nobari Law Professional Corporation has agreed to act.

Complete the Estate Planning Intake Form

Primary and Secondary Wills may provide valuable probate planning where a person owns private corporation interests or other assets that can be administered without a court-issued Certificate.

Contact Nobari Law Professional Corporation to discuss whether Primary and Secondary Wills may be appropriate for your Ontario estate plan.