Alter-ego Blog Business Continuity Business Development Business Growth Business Owner Business Strategy Contiunity Planning Covid-19 Estate Freeze Estate Planning Executor Family Family Family bank Family business Family Meeting Family Office Family Trusts Fiduciary Holiday Independent trustee Inheritance Insights Inter-vivos Joint partner Legacy Matrimonial agreement Mulitple Wills Multi-Family Office Philanthropy Power of Attorney Representation Agreement Shareholder agreement Shareholders Succession Tax Trusts Wills
2021 2020 2019 2018 2017 2016 2015

Probate fee planning for those under 65 now confirmed

CV TrustCo June 19, 2017

 

We blogged about multiple wills in December 2015 as a strategy for those under 65 to reduce probate fees (1.4% of the value of an estate).  Our understanding at that time was that multiple wills were accepted as a matter of policy, as opposed to being confirmed by a BC Court.  Well, the Berkner Estate court decision (2017 BCSC 619) has now confirmed the effectiveness of multiple wills.

This blog post expands on the planning opportunities of using multiple wills, as well as some of the practical issues.

The opportunity to save 1.4% in estate value

Your trust and estate lawyer can give you the legal specifics about the probate process and what it means to be an executor.  For now, what you need to know it that certain assets do not require probate to provide an executor with the authority to deal with an estate’s assets.  As an example, shares of a private company do not require probate – the company’s directors can authorize a change in ownership simply based on the will.

Take a single will estate with assets consisting of a $1M home and $5M in private company shares.  With only a single will, probate of all assets is required to give the executor authority to deal with the home.  However, if the home was in one will – a Personal Will – and the private company shares were in a separate will – a Business Will – probate would only be payable on the home held in the Personal Will.  The Business Will would not require probate resulting in $70K in probate savings (1.4% times $5M).

Often when suggesting multiple wills, the discussion ends with two wills, but it is possible to have three or more wills.  Consider the art collection that requires specific expertise to maximize its value or charitable donation to a gallery.  A separate will with an executor having specialized expertise could go a long way in monetizing a unique asset.

Also, the Business Will is not a public document like the probated Personal Will – an attractive feature when a family feud may be in the cards.

Practical issues

Often, with savings comes complications.  In a multiple will situation, each will requires a separate executor.  So, these separate executors better be on the same page:

  • There is only one trust tax return that combines all the assets of all wills. Are all executors going to sign the certificate of correctness in the trust return?  Are there inconsistencies between estate law and the Tax Act?

 

  • What if there is tax payable arising from one will that doesn’t have the funds to pay the tax? Is there a mechanism in the other will to accommodate and help pay the taxes?

 

  • Claims against an estate must be initiated within 6 months of grant of probate. What happens with the will that is not subject to probate?  When does that limitation clock start?  (Note that if there are significant litigious issues, one solution could be to probate the will and start the limitation clock that way.)

So, make sure that these separate executors are on the same page as they will likely need to co-operate on many issues. Consider meeting with all executors when making your wills to ensure they understand your wishes and the responsibility they will be taking on.

It should be evident by now that the proper drafting of legal documents could go a long way to avoiding complications in the future.  So, get an experienced trust and estate lawyer.  Their expertise is worth paying for.  As the saying goes, “If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur.”

When you hit 65, an alter-ego trust or joint partner trust will greatly simplify the above and still provide for privacy, probate savings and even greater litigation protection.

 

CV TrustCo brings an independent and informed perspective on trust and estate planning combined with the security of a regulated trust company.

CV TrustCo’s team of seasoned professionals work with you and your advisors to design and execute a tailored estate plan. CV TrustCo provides a range of fiduciary services and can act as the executor and trustee of your legacy, carrying out your estate plan as you intended.

The result: you will have a clear understanding of your options, a practical plan for your legacy, and the security and reliability of a financial institution acting as your power of attorney, executor and trustee.

Our estate planning posts consider estate planning issues at a high level.  Before you commence any form of estate planning, please consult with tax and legal advisors