Primary and Secondary Wills: How the Executor Administers Both

Finding two wills among the deceased's papers can be confusing. Sometimes the second is a replacement, and sometimes the two were prepared to work side by side, with one covering certain assets and the other covering the rest.

This article explains in general terms how an executor approaches a situation with more than one will, how the tax base can be affected, and what to check first. How the wills fit together depends on their exact wording, so a lawyer should review the documents.

First question: are the wills meant to work together?

Two wills can relate to each other in different ways. A later will may be intended to replace an earlier one. Or the deceased may have signed two wills at around the same time, with each one dealing with a different group of assets. Which situation you are in depends on the words used in each will, so it is worth having a lawyer review them.

Do not assume. Read each will closely, note the dates, and keep the originals safe. A lawyer can tell you how the wording is likely to be read.

Which assets fall under which will

Where two wills are meant to operate together, each will describes the assets it covers. How the executor deals with each group of assets depends on the wording of the wills, and a lawyer can confirm the details. Assets that pass outside the estate, such as joint bank accounts and accounts with a designated beneficiary, need no certificate.

Which will is probated, and how fees are handled

Whether one will or both go through the court depends on how the wills divide the assets and what the institutions holding those assets require. Ontario treats probate as normally necessary when the deceased owned real property or assets held by a financial institution. The institution may also require a certificate or small estate certificate, so ask.

The fee point is the one that gets the most attention. A certificate limited to the assets in one will means only the assets in that will count toward the tax base. For certificates applied for on or after January 1, 2020, there is no tax on the first $50,000 and then $15 per $1,000 or part of $1,000. Estate value is the fair market value at the date of death, and it is rounded up to the nearest thousand.

Some costs cannot reduce the tax base. Funeral expenses, lawyer's fees, loans, credit card debt and real estate commissions cannot be deducted, and only encumbrances on real property such as a mortgage are deductible. The estate pays the tax, not the executor personally. How the wills are structured and whether a second application is needed is a legal question that depends on the facts.

Steps the application still requires

• The applicant must send or give the application to the estate beneficiaries, with a copy signed before a Commissioner for Taking Affidavits.
• Court staff search for a more recent will deposited with the court, and the certificate may be refused if a more recent one was deposited than the one filed.
• Any codicil must be submitted, and a codicil that alters the will may require Form 74E.
• After the certificate is issued, an Estate Information Return is due within 180 calendar days.

If the value must be estimated, the applicant swears the estimate, pays tax on it, and undertakes to file a sworn statement of total value within six months and pay any balance. With two wills, careful records of which assets sit under which will make that statement easier.

What to do next

• Collect the originals of every will and codicil, and note the date and signing details of each.
• Make a full asset list and mark whether each asset is in the deceased's name alone, joint, or has a named beneficiary.
• Note any assets outside Ontario, which are excluded from the Ontario tax base but may bring a resealing question.
• Identify all beneficiaries under each will, including any minors or incapable adults.
• Keep your estate records organized, because records must be kept for four years.
• Have an Ontario estates lawyer review the wills before applying, so the application matches how the wills divide the assets.

Frequently asked questions