You should only have one will that deals with any given asset. However, it is not uncommon to have more than one will, with the different wills dealing with different assets. This is known as ‘multiple wills’. The wills must co-exist, and in particular, one must not revoke the other. This technique is particularly useful for:
- Reducing probate taxes. For instance, some assets, such as shares in a private company, often do not require probate and yet can be very valuable. If these assets are dealt with in one will that is not probated, the other assets (for instance real estate) that do require probate can be dealt with in another will. Probate taxes are only payable on the value of the assets covered by the will that is probated.
- Dealing with assets in another jurisdiction. If you own property in Ontario, a cottage in Quebec and property in Florida, it is quite possible that it would be best to have three separate wills. You may even have three separate executors. This may make getting probate in each jurisdiction and administration of each estate simpler. Each will should be prepared in accordance with the laws of the relevant jurisdiction (for instance, the Quebec will should be prepared by a Quebec notary), but, they all need to work together.
Obviously, it requires some finesse to properly draft multiple wills. In particular, it is very important:
- to make it very clear which will deals with which assets,
- to make sure that all assets are dealt with,
- to ensure that the overall disposition of the estate to beneficiaries meets your intentions,
- that all tax consequences in all jurisdictions are properly thought through,
- to ensure that each will is valid and enforceable in the jurisdiction where it applies (no point following Ontario law for a will that will govern assets in Florida), and
- to ensure that all wills remain valid and that one will does not revoke the other(s).