Worldwide assets

In today’s highly interconnected world in which people and capital move freely, it is very common for people to own assets in several jurisdictions. Consider, for example, the typical Canadian snowbird, who has a residence in Canada and a residence in Florida, Arizona or California. While one Will can dispose of all those assets, it is a common estate planning technique to prepare separate Wills to deal with the disposition of assets that are located in different jurisdictions.

Probate

If you have bank accounts or real estate held solely in your name, then a probated Will is generally required for your executors to access your funds and distribute them according to your wishes. Probate (Latin for “approve”) is the process by which the court certifies that a Will is valid, and by which the court appoints the Executors and Estate Trustees named in the Will. The court certifies the Will and makes the appointment by issuing a Certificate of Appointment of Estate Trustee with a Will.

Wills in Separate Jurisdictions: Advantages and Disadvantages

The advantage of Wills in separate jurisdictions is that the probate process can be completed independently in different jurisdictions. If probate fees are lower in certain jurisdictions, then getting a Will probated there is beneficial from a tax planning point of view. On the other hand, where a single Will is used to dispose of all assets, it is necessary to reseal or obtain an “ancillary appointment” of the original or primary Certificate in the jurisdictions where probate was not obtained. People who wish to have Wills in separate jurisdictions should consult a solicitor in each of those jurisdictions to prepare their Wills there to ensure the Will complies with the laws of the relevant jurisdiction. However, for various reasons some clients do not wish to obtain probate in more than one province. If that is the case, then they may have one Will, but should be aware that their executors will need to reseal or obtain an “ancillary appointment” of the original or primary Certificate in the jurisdictions where probate was not obtained.

Keep in mind that in some civil law jurisdictions, rules of forced heirship may override the provisions of a standard Ontario Will. As well, there may be significant tax implications where either the testator or a beneficiary is a citizen of or resident in another jurisdiction. For example, special planning may be required where you or your spouse is a US citizen to avoid US estate tax and generation skipping tax. For this reason as well, you should consult a solicitor qualified in the relevant jurisdiction to review or participate in the preparation of the Will.

This article contains material found in The Annotated Will 2014 Toronto: Law Society of Upper Canada, 2014.