Comprehensive Will Planning: Primary and Secondary Wills
The Importance of Valid Wills and Using Secondary Wills to Reduce Probate Fees and Protect Your Estate
A Primary Will is the essential legal instrument that dictates how an individual’s estate, including real property, investments, and personal effects, Will be distributed upon death. In Ontario, having a valid Will is critically important to avoid the complications of dying intestate, where provincial laws govern asset distribution without regard to personal wishes. Everyone over the legal age of 18 should have at least a Basic Will prepared to ensure clarity in their estate administration, minimize probate fees, and provide guidance for estate trustees.
Without a Will, families often face protracted delays, elevated administration costs, and potential disputes. The role of an estate trustee, appointed under the Will, is to carry out fiduciary duties, including collecting assets, settling debts and taxes, and distributing the estate according to the testator’s instructions. For individuals holding interests in private corporations, a Secondary or Corporate Will is a vital planning tool that can save the high costs of probate fees. In Ontario, probate fees can amount to approximately 1.5% of the fair market value of the assets subject to probate, including shares of a private company.
By segregating corporate assets through a Secondary Will, estate owners can reduce probate exposure and facilitate smoother business succession and asset transfer. This layered Will strategy aligns with income tax planning and ensures that the fair market value shares of private companies are managed efficiently, protecting family wealth and reducing administrative burdens. We offer comprehensive services to draft, review, and securely deposit primary and secondary Wills, advising clients on how to safeguard their estates and optimize probate processes.
In addition to Wills, Powers of Attorney for Property and for Personal Care are central instruments in incapacity planning. A Continuing Power of Attorney for Property authorizes an appointed attorney to manage financial and legal affairs, including banking, investments, corporate matters, and tax obligations, and, unless expressly restricted, is effective immediately upon execution and continues during the grantor’s incapacity. A Power of Attorney for Personal Care governs substitute decision-making for health care, housing, nutrition, and personal welfare, but only becomes operative once the grantor is found incapable of making those decisions. In Ontario, a person must be at least 18 years of age and capable to grant a POA for Property, while a POA for Personal Care may be granted by a capable person who is at least 16. These documents must be precisely drafted to define authority, conditions of use, and any statutory or contractual limitations.
Our services include customizing these powers, reviewing existing documents, and advising on deposit and registration options to ensure that authority is clear, enforceable, and aligned with the client’s wishes. This spear and shield law approach provides both proactive estate transfer ("spear") and protective mechanisms during life ("shield"), ensuring continuity, control, and protection across generations.
