Using Primary and Secondary Wills in Ontario to Reduce Probate Fees

If your estate includes assets that don't need court approval to transfer, you may be paying estate administration tax — Ontario's version of probate fees — on assets that never needed to go through probate at all. A multiple-wills strategy, sometimes called a primary and secondary will, is a well-established technique in Ontario that separates your estate into two groups: assets that must go through the court-supervised probate process, and assets that can be transferred privately without it.

This article explains how the strategy works, which assets typically qualify, and what can go wrong — so you can have an informed conversation with your estate lawyer.

What Is Probate (Estate Administration Tax) in Ontario?

When someone dies in Ontario, their executor may need to apply to the court for a Certificate of Appointment of Estate Trustee — commonly called probate. This certificate proves to banks, land registry offices, and other institutions that the executor has legal authority to deal with the deceased's assets.

The application triggers estate administration tax (EAT), sometimes still called probate fees. As of writing, the rate is approximately 1.5% on the value of the estate above a threshold — verify the current rate with ServiceOntario before planning. On a $1,000,000 estate, the tax alone can exceed $14,000. It scales with every additional dollar of estate value, which is why high-net-worth individuals look hard for ways to reduce the probate estate.

How the Two-Will Strategy Works

The idea is straightforward:

1. Primary Will — covers assets that third parties (banks, the land registry, public companies) will require probate to recognize. Real property in your sole name, publicly traded securities held in non-registered accounts, and most bank accounts typically fall here.

1. Secondary Will — covers assets that can be transferred without a court certificate. The executor of a private company can accept a secondary will without demanding probate, because there is no third-party institutional requirement.

Because EAT is calculated on the value of the probate estate — the assets covered by the primary will — a carefully drafted secondary will removes those non-probate assets from the tax base entirely.

Which Assets Typically Go in a Secondary Will?

Common candidates include:

• Shares in a privately held corporation — this is the most common driver of the strategy; a controlling shareholder's shares in a family business or holding company can represent enormous value
• Loans receivable from a private company (shareholder loans)
• Valuable personal property — jewelry, art, vehicles, and similar chattels whose transfer does not require a probated will
• Some types of business interests in partnerships or sole proprietorships

What generally stays in the primary will: real estate, registered accounts with no named beneficiary, publicly held securities, and bank accounts at institutions that insist on probate.

The Legal Requirements in Ontario

Ontario courts have upheld the multiple-will strategy, but the documents must be drafted with precision. Key requirements:

• Each will must be formally executed under the Succession Law Reform Act — two witnesses, testator signature, etc.
• Each will must contain a clear definition of the assets it covers, typically drafted as "all assets other than those covered by my secondary will" in the primary, and a specific enumeration in the secondary.
• Each will should address what happens to residue within that will.
• The wills must be consistent on the appointment of trustees and guardians or clearly address how conflicts are resolved.
• The date of the secondary will matters — the later-dated will cannot inadvertently revoke the earlier one if a standard revocation clause is used. Your lawyer will modify the revocation clause accordingly.

A poorly drafted secondary will can inadvertently revoke the primary, or vice versa. This is not a DIY project.

What Can Go Wrong

Over-Stuffing the Secondary Will

Putting assets in the secondary will that a third party (a bank, a transfer agent, the land registry) actually needs probate for defeats the purpose and can create a mess for your executor. Confirm which institutions will accept a non-probated secondary will before assets are assigned.

Changes in Asset Composition

If you later sell your private company or move assets between categories, the secondary will's definition may no longer match what you actually own. Review both wills whenever your asset mix changes significantly.

Inter-Provincial or International Assets

If you own real property in another province or country, that province's or country's law governs probate for that asset — not Ontario's. A separate ancillary probate application may still be required regardless of how your Ontario wills are structured.

Forgetting to Update After Incorporation

Many clients incorporate, accumulate significant value in a holding company, and never revisit their single existing will. Adding a secondary will is one of the highest-value estate planning updates a business owner can make.

How Often Should You Review?

Review your multiple-will structure whenever you:

• Acquire or sell shares in a private company
• Add or remove real property from your name
• Experience a major life event (marriage, separation, death of a beneficiary)
• The Ontario EAT rate or applicable law changes

Frequently asked questions