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Having two wills can lead to estate-planning savings that add up quickly

In this strategy, putting some assets in a separate will can save on probate fees

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When is it better to have two wills? More than one can be a winning strategy for complex estates, say experts in estate planning and law.

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“Done properly it can save the estate and the beneficiaries time, money and headaches,” says Cynthia Kett, founding principal at Stewart & Kett Financial Advisors in Toronto.

In Canada, the chief savings usually comes from avoiding probate fees. While many assets, including real estate and investment accounts, must go through probate, many others do not have to be probated.

Probate fees vary widely from province to province. In Ontario, the 1.5-per-cent fee on assets of more than $50,000 can add up quickly for high-net-worth clients, says Kett.

Assets that could be included in a non-probated will are shares of private companies, amounts receivable from private loans and private-use items such as home contents, antiques, artwork and jewelry.

Assets held in trust can be excluded from probate as well, says Kett.

“Sometimes people will register assets like their homes, cottages, other real estate and investment portfolios to be held by a person or corporation as a bare trustee. If they’re held that way they can be excluded from probate.”

The strategy of having one will for probated assets and one for non-probated items is particularly popular in Ontario, says Alaina Spec, partner, estates and trusts, for KPMG Law in Ottawa.

“Most commonly, people use multiple wills when they have private company shares,” she says. “Where a client has personal effects that are financially significant we would also recommend that type of planning, even if you didn’t have private company shares.”

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The rationale may not apply to the same extent in provinces such as Alberta that have low probate fees.

Two wills, two executors

Some provinces have other hindrances to the multiple-will strategy. For this probate planning approach to work in British Columbia, for instance, each will must have a different executor, says Kate Marples, partner, estates and trust, at KPMG Law in Vancouver. “That’s a significant hurdle. Some clients have trouble coming up with one executor they can name, let alone two that they trust.”

Also, probate isn’t always a bad thing, says Kett. The process confirms the executor trustee as the person authorized to handle the estate.

“It offers some protection for the executor trustee as well as banks, brokerage firms and financial institutions … because they don’t want to be transferring assets from the estate to beneficiaries without evidence that this is what they should be doing.”

Confidentiality is another benefit of the dual-will strategy. A second will that isn’t subject to probate allows clients to keep the assets and terms of the will private. A probated will is a public document, but a non-probated will is not. So a potential claimant won’t have details of what’s contained in that non-probated will.

But there’s a potential for challenges later

A downside is the potential for challenges to a non-probated will long after the fact.

“B.C. has a variation opportunity. When an individual dies, a spouse or children have the opportunity to apply to the court to ‘vary’ the will,” says Marples. (Under B.C. legislation, if the court finds a will doesn’t make adequate provision for “proper maintenance and support” of spouse or children, the court can order provision of that support.) “So in the case of one child being disinherited, that child could apply to the court and say, ‘I deserve a fair share — vary the will.’

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“The time limit on being able to bring that kind of application depends on when probate is issued,” she says. But the clock never starts on that time limit if there is no probate.

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“For individuals who have this potential variation out there — there’s this estranged child who’s left out of the will entirely — a dual will strategy is not an appropriate solution because the variation concern is bigger than the probate fees.”

Probate isn’t the only issue that can trigger the need for more than one will.

Having assets in different jurisdictions, either within Canada or outside it, can make multiple wills a necessity. For instance, clients with most of their assets in B.C. but some property in Ontario would want a separate will for the Ontario property, suggests Marples.

It’s crucial to seek the proper advice in international jurisdictions, she adds. “Don’t rely on a will written here being valid in the Cayman Islands.”

The multiple-will strategy has a few potential pitfalls.

Spec urges a co-ordinated approach to the drafting of the wills. “I never like to prepare a second will unless I’ve done the first. I like to do them at the same time. They do need to speak to each other and you need to be careful they do not cancel or revoke one another.”

Left hand, meet right hand

Assets can fall through the cracks between wills, too, which will cause headaches in the long run, advisors say. And descriptions of assets have to be specific to avoid confusion.

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“Sometimes you can have multiple wills and more than one will covers the same assets,” says Kett. “That’s a problem, especially if different executor trustees, perhaps in different jurisdictions, are dealing with the different assets.”

Two wills, for instance, might both mention a gift of $500,000 going to a specific beneficiary. That person may end up getting $1 million rather than the intended $500,000, says Kett.

The question of whether more than one will is worth the upfront cost depends on whether the savings in fees end up being equivalent or more, says Spec.

Marples adds that having a lawyer draft two wills doesn’t necessarily cost twice as much as one will. If the only difference between the wills is the assets covered (private company shares in one will, for instance, and everything else in the other), but other terms, such as the beneficiaries, stay the same, the work and time required to draft the wills isn’t doubled, she says. If each will is unique, however, it can cost double, she says.

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