Having assets in two countries does not necessarily mean that you need two wills. The question is whether one will can effectively coordinate the practical requirements of estate administration in both places, or whether a more streamlined process is recommended.

Can one will cover assets in two countries?

While a single will may cover assets in multiple jurisdictions, the will itself is only part of the estate administration process. Your will must ultimately be usable for your estate trustee.

In Ontario, a bank or other institution may require a Certificate of Appointment of Estate Trustee, for example, before allowing your trustee to deal with an asset. Institutions in other countries may additionally require authenticated documents, certified translations or other evidence before they can recognize the trustee’s authority. 

Whether probate is needed will depend on the circumstances. However, assets outside of Ontario may notably require a separate process under local law.

Before relying on a single will for more than one jurisdiction, it is therefore useful to consider how it would actually be put into effect in each place.

Why consider separate wills?

Separate wills, on the other hand, may allow each document to be submitted to the relevant court or used locally without depending on the other.

It is important that each will clearly identify the assets it covers, and those that it does not. Uncertainty about the distribution of assets may inadvertently lead to one will taking priority over the other, or one will revoking the other. This was discussed in the British Columbia Supreme Court’s decision Berkner Estate, 2017 BCSC 619. 

The wills must therefore be coordinated, avoiding conflicting instructions or gaps in your full-picture estate plan.

Review who you have appointed as estate trustee

Your estate trustee is responsible for carrying out the instructions in your will. A move abroad is a useful opportunity to reconsider whether your chosen person remains suitable for the role.

Consider their willingness to act, their ability to manage assets in Ontario, and the practical demands of communicating with banks, lawyers and other institutions. If your chosen trustee lives outside Ontario, they may also be required to post a bond when applying for probate.

Separate wills may appoint different trustees, but their responsibilities, and the payment of debts and taxes from the different asset pools, must be carefully coordinated.

Coordinate Your Wills With Your Tax Position

Canada generally treats a person as having disposed of certain capital property immediately before death. This may create taxable gains where assets have not actually been sold.

Your estate may also have Canadian tax filing and payment obligations. The second jurisdiction may impose its own requirements concerning inherited assets, income they generate or their eventual sale.

If you have separate wills, your estate planning should address which assets will be used to pay debts and taxes. Legal and tax advisers in the relevant jurisdictions should review the same estate plan so that the documents and tax arrangements work together.

One Estate Plan

Regardless of how many wills you decide to establish, the goal is to create a workable estate plan across the jurisdictions in which you own assets.

I advise on the Ontario side of cross-border estate planning. Where a separate foreign will is appropriate, I can work with counsel in that jurisdiction to help ensure that your Ontario will forms part of a coordinated estate plan.