The probate process and multiple wills

October 24, 2019

When someone passes away and you are the designated estate trustee, you will likely need to access the deceased’s funds and accounts in order to settle the estate. In order to do this, it may be necessary to have the will probated. The probate process involves levying a fee, or tax, placed on the assets for the protection of banks and other institutions.

Probate fees help avoid any liability on the banks, or other institutions, if the funds are administered incorrectly. However, not every type of asset requires the probate process. This is commonly found in people who have complex estates.

However, some people want to try and avoid probate fees on their estates for the benefit of their surviving families and friends. In order to do so, they may create a secondary will.

Most people draft a single will that contains how they would like their assets distributed. For individuals with complex estates, such as those that own private company shares or antiques, they may not need the probate process applied to these assets.

In this situation, testators may decide to create a secondary will. What this does is separates the assets into a “primary will” that requires the probate process, and another will that allows the estate trustee to divide the assets him or herself free of any probate fees.

However, this type of situation creates a matter where there are multiple wills. A recent provincial case called into question the validity of having multiple wills, with the Supreme Court of Ontario ruling one way, and then the Divisional Court of Ontario ruling another.

There are many factors to examine when evaluating the use of secondary or multiple wills. If you have questions, or are considering ways to reduce the probate fees on your estate, it’s best advised that you consult with an experienced estates lawyer. He or she will be able to explain how estate laws apply to your situation and can advise you on the best way to address your specific needs.