Wills and Probate - UK and Canada
 

My wife and I are Canadian residents and have been for 30+ years. We have "mirror image" wills leaving all to the other and then second to die leaving it to my two nephews and my old college - all in the UK.

We will have about 75% of our assets in Canada (Ontario) and about 25% in the UK (investments).

Should we have two wills each -
- one in Canada covering Canadian assets,
- one in the UK covering UK assets
- or will one Canadian will be sufficient for everything?

What about probate - will we need separate probates in UK and Canada?

And maybe other questions we haven't even thought of yet!

Any and all advice welcome. Thx.

Re: Wills and Probate - UK and Canada
 

First thing - you should not think in terms of "U.K." and "Canada" for this purpose.

For Canada - think in terms of each province and territory, since wills/probate/estate matters are subject to provincial jurisdiction. And for the U.K., you need to understand that Scotland and Northern Ireland are both distinct from England and Wales, and have different laws and procedures concerning estate and probate.

In most circumstances, a will from a Canadian province/territory should be acceptable for probate in the U.K. jurisdictions. The process might take longer than for a local will, but it normally can be done. So normally, you don't need two wills (there are many forum myths about this) and it actually increases the risk of complexity with your estate. Greatly.

You normally would need probate in the U.K. as well, unless the amounts were small enough to allow the Registrar of the companies involved to dispense with probate procedures.

Are you confident that you have divested yourself of any U.K. domicile that you may have had, and acquired a Canadian domicile of choice? This is important to keep your non-U.K. assets out of scope for Inheritance Tax. Should normally be possible after 30 years (especially if you have Canadian citizenship), as long as your intention is to remain in Canada.

Re: Wills and Probate - UK and Canada
 

Can't really answer you questions re wills for Uk and Canada.
however, if you google UK probate service you can email them and ask about your situation - they are very helpful.
I think to be safe, both Canadian and UK wills would be best, so long as each references the other regarding the assets in each country, as I assume your asset distribution would depend on the laws in each country.how your nephews would be able to realise your Canadian Assets is a question for a UK solicitor!(assuming they are UK citizens)

As you have mirror image wills, unless you have loads of cash then it may not be necessary to go to UK probate for your UK assets if they automatically go to your partner. when my Mother in Law died I was executor and did not need probate as the property automatically transferred to Father in Law and only the Post Office played up asking for probate to release her savings. A stiff letter took care of that as she had less there than in the Bank and the Bank did not need probate.I think their limit was about 30,000 pounds before probate was necessary, though each Bank is different. When Father in Law died a couple of years later , again I was Executor and then we DID have to go to probate as he then legally owned everything.

Re: Wills and Probate - UK and Canada
 

JAJ

There is inheritance tax in Canada?

Re: Wills and Probate - UK and Canada
 

No. Same answer as you got in your other thread to this question.

Re: Wills and Probate - UK and Canada
 

Yep. Thx A.

Re: Wills and Probate - UK and Canada
 

My situation was quite similar to yours. I obtained legal advice on both sides of the pond and was advised to have a will in each jurisdiction. My Ab lawyer was the one to recommend this set up and my solicitor in Scotland agreed.

Re: Wills and Probate - UK and Canada
 

Really?
Why not simply take an Alberta will for probate in Scotland?

Leaving aside the risk of confusion, between two wills, if you want to show loss of Scottish domicile is it such a good idea to keep a Scottish will?

Re: Wills and Probate - UK and Canada
 

No, although as far as I am aware, Canada taxes capital gains accumulated at death which is an estate tax in disguise.

United Kingdom Inheritance Tax applies to the estate of anyone in Canada who has a British domicile. It is possible to lose domicile but it's not as simple as merely ceasing to be resident. In practice, if everything in the U.K. has been divested it's less of a concern. It's more relevant to those who have retained property in the U.K.

Re: Wills and Probate - UK and Canada
 

I agree, I have a BC will and that is all I need. Having two wills just adds to the confusion (and tax liability risk).

Re: Wills and Probate - UK and Canada
 

Based on the professional advice I was given, I am quite comfortable with how my wills have been written and so is my executor.

I was not trying to show a loss of Scottish domicile.

Re: Wills and Probate - UK and Canada
 

In that case your situation is different from the majority.

Even so, it's still difficult to see why someone in this situation would ever want to have two wills. If you move back to Scotland, you would normally have (or create) a single Scottish will and if there were any assets in Alberta, a Scottish will could be probated in that province.

A quick search suggests that both Scotland and Alberta accept out of jurisdiction wills for probate.

Re: Wills and Probate - UK and Canada
 

Thanks for all your posts everyone.

So who taxes who if you have property in both countries? Does the UK tax anything you have in the UK with Canada taxing everything else? Or if you have just a Canadian will and get it probate in the UK, does Canada tax everything?

Also, you mentioned domicile being different from residency. What proves that you are no longer domicile?

JAJ - you mentioned that you believe having a will in two countries can increase confusion and tax liabilities. It would be really useful to have an example of both in terms of what could happen?

My Canadian lawyer *thinks* the best route is a will in each country. UK covers just UK and Canada covers everything else. But he says "ask a UK lawyer to confirm". I am wondering if a UK lawyer will say "As a Canadian Lawyer to confirm" and so the game of ping-pong begins (and they both go home happy and fed)!

Also, if anyone knows a good lawyer who understand both UK and Canada together, please can you PM me their details. Thx

Re: Wills and Probate - UK and Canada
 

You need to fire your Canadian lawyer. S/he doesn't know what they are doing.

If you contact the lawyer referral service in BC, they should be able to provide you with details of any dual qualified lawyers in BC.

Re: Wills and Probate - UK and Canada
 

Some general principles.

IF you are still domiciled in the U.K. = Inheritance Tax applies on worldwide assets.

If you have U.K. property = Inheritance Tax applies on that property whether or not you are domiciled.

If you are Canada tax resident = your estate is charged capital gains tax based on an assumed disposal of all your assets at death.

In any cross-border situation, you could end up being taxed twice.




No simple answer, sorry. Be prepared to do a lot of research if you want to understand this in more detail. For example, you could read.
RDRM20000 - Domicile: Main Contents

One guide is that if your mindset is some variant of "England/Scotland etc. is always home" then it's quite possible that you have not lost any U.K. domicile you may have possessed.

At a minimum, you need to know a. if you still might be domiciled in the U.K. and b, if you are, what steps you need to take to lose U.K. domicile (if that is what you want).

Real simple - one will says one thing, the other will says something contradictory. Or you have property in a third country, which will applies to it?


So if a Canadian will can cover the entire world other than the U.K. why not keep things simple and have one will for worldwide assets?

Have you read the earlier posts on the thread? If so, you'd already know there's no such thing as a "Canadian" will since will and probate law is provincial. So if you had assets in each Canadian province, would you really want to make ten separate wills?

And if you research further there's no such thing as "U.K." either for will/probate - there's England/Wales, Scotland and Northern Ireland.

All this is as simple or complicated as you want it to be.

If you've living in Canada, make a will under local provincial law. You only need a second will if you hold assets somewhere else and that jurisdiction would not accept your Canadian will. And since most jurisdictions do accept non-local wills, to a greater or lesser extent, this is usually not a problem.

And if all this is too complex for you, there's another solution, especially if you have settled permanently in Canada. If you divest of your foreign assets, then you don't have to worry about whether your will is acceptable in another country.