A Certificate of Appointment of Estate Trustee With a Will is not always required in order to administer an estate, but if it is required to deal with certain assets governed by the Will then probate fees will be payable on all of the assets governed by the Will. As such, the use of multiple Wills in certain circumstances is becoming an increasingly popular means to help to minimize probate fees. Likely the most common scenario in which multiple wills are used is when a testator holds shares in a private corporation, such as a family business or a holding company. Probate is not generally required in order to deal with such shares and, accordingly, if the shares have significant value then consideration should be given to preparing a second Will that deals separately with those shares.
When multiple Wills are used, one Will (the primary Will) deals with all of the assets that form part of the estate and that require probate. The other Will (the secondary Will) deals with all of the other assets that are part of the estate but that do not require probate. On the testator’s death, only the primary Will is submitted to the court and probate fees are payable only on the value of the assets that are governed by that primary Will.
As with foreign Wills, additional care must be taken when drafting multiple Wills. The assets that are intended to pass under each Will must be clearly identified and must not result in contradictions or gaps in the estate. As well, it must be clear that the intent is for the Wills to co-exist, and that one Will does not effectively revoke the other.
With multiple Wills, the identity of the trustees and the beneficiaries as well as the distribution of the assets can be identical in both Wills. In other words, there is no need for the Wills to be different other than the identity and nature of the property that each Will governs. If the testator is providing legacies then those legacies should only be included in one of the Wills. A provision should then be included in the other Will stating that if the assets under the first Will are insufficient to satisfy the legacies any deficiency should be paid from the assets passing under the other Will.
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