Last updated October 26, 2026.
If you own shares in a private corporation, your estate plan has a question most wills never ask: do those shares need to go through probate at all? For many Ontario business owners the answer is no, and a second will is how they keep it that way. Here is how it works.
Why probate matters here
When an estate goes through probate in Ontario, the province generally charges Estate Administration Tax on its value: nothing on the first $50,000, then about 1.5% on the rest. On a company worth a few million dollars, that is a real number, and it is paid from the estate before anyone inherits.
Probate exists because banks, land registries and other institutions want court confirmation that the executor has authority before they release assets. Shares in a private company are different. The company keeps its own securities register (section 141 of the Business Corporations Act), and section 67 of that Act sets out how it recognizes an estate trustee: a company whose articles or shareholder agreement restrict share transfers must treat the estate trustee as entitled to the shareholder’s rights once they provide the evidence the Securities Transfer Act, 2006 describes, and section 67(8) provides a route to registration where the governing law does not require probate. In practice, that means a private company can often deal with the executor without a court certificate.
The exact rule is in the Estate Administration Tax Act, 1998. For applications made on or after January 1, 2020, section 2(6.1) charges $15 for each $1,000, or part of $1,000, by which the value of the estate exceeds $50,000, and the tax is owed only when an estate certificate is issued (section 2(1)). We work through the calculation in how much is Ontario’s Estate Administration Tax.
How a primary and secondary will work
Instead of one will covering everything, you sign two:
- A primary will for assets that generally need probate, such as bank accounts and real estate in your own name.
- A secondary will for assets that usually don’t, such as shares in your private corporation, money owed to you by the company, and some personal property.
Only the primary will goes to court, so Estate Administration Tax is generally calculated only on the assets it covers. Ontario’s own guidance confirms the tax side of this: when the court issues a Certificate of Appointment of Estate Trustee with a Will Limited to the Assets Referred to in the Will, only the assets in that specific will are included in the value of the estate. The approach is now a standard part of planning for business owners.
After a death, the two wills are handled in different ways:
- The primary will is probated on its own. The estate trustee applies for a certificate limited to the assets referred to in the primary will. Rule 74.04(1)(g) of the Rules of Civil Procedure requires a draft order in Form 74I for that kind of certificate, in addition to the usual package explained in how to apply for a Certificate of Appointment of Estate Trustee.
- Only the primary assets are valued for the court. Section 32(3) of the Estates Act says that where the application is limited to part of the property, the statement of value need only cover the property the grant is meant to affect.
- The tax is paid on that value. The deposit covers the primary will’s assets, and so does the Estate Information Return filed with the Ministry of Finance afterwards.
- The secondary will is acted on without a certificate. The estate trustee named in it deals with the company shares directly, provided the company and anyone else holding those assets accept that authority.
| Point | Primary will | Secondary will |
|---|---|---|
| Typical assets | Bank accounts, investments and real estate in your own name | Private company shares, money the company owes you, some personal property |
| Goes to court? | Yes, for a certificate limited to its assets | Usually not |
| Court form for the limited certificate | Draft order in Form 74I (Rule 74.04(1)(g)) | Not applicable |
| Estate Administration Tax | On the assets in this will only | None, if no certificate is issued for it |
| Signing rules | Full SLRA formalities | The same full SLRA formalities |
| Revocation clause | Must not revoke the secondary will | Must not revoke the primary will |
When it is worth doing
A secondary will makes the most sense when your private company shares are worth a meaningful amount. It also takes care: the two wills must be drafted together so that neither accidentally revokes the other, and each needs clear wording about which assets it covers.
It also needs to fit the company. Your articles, your shareholders’ agreement and the directors who will be in place after your death all affect whether the shares can actually be transferred without probate. That is why we look at the corporate records and the estate plan at the same time.
The wording of two wills matters as much as the idea. One drafting mistake can send everything back to probate.
What changes the answer
The revocation clauses
Section 15 of the Succession Law Reform Act says a will is revoked by another will, or by a writing declaring an intention to revoke, made with the same formalities. Most wills open by revoking all earlier wills. If the second will signed contains that standard clause without an exception, it can revoke the first one. Each will has to say clearly that it does not revoke the other.
Proper signing of both
The secondary will is a will like any other. It needs to be in writing, signed at the end and properly witnessed, as set out in what makes a will valid in Ontario. A secondary will that fails the formalities can leave the shares to pass under the primary will, or as if there were no will for them.
The company’s own documents
If the articles or a shareholders’ agreement require a court certificate before shares are transferred, or give other shareholders a right to buy them on death, the plan has to work with that. Our page on shareholders’ agreements covers the clauses that usually matter.
Who will be running the company
If you are the only director, someone has to be in a position to recognize the estate trustee after your death. That is a corporate question as much as an estate one, and it is part of our corporate law work.
Capacity
Two wills have to be signed while you can still make a will. An attorney under a continuing power of attorney for property can manage your shares if you become ill, but section 7(2) of the Substitute Decisions Act, 1992 says they cannot make a will for you.
Example
For example, imagine Victor, who owns all the shares of a manufacturing company in Vaughan worth $2,000,000. He also has a house and investments worth $900,000 in his own name, with no mortgage. With a single will, the estate for tax purposes would be $2,900,000. That is $2,850,000 over the threshold, or 2,850 units of $1,000 at $15 each: $42,750.
With a primary will for the house and investments and a secondary will for the shares, the limited certificate covers $900,000. That is $850,000 over the threshold, or 850 units at $15: $12,750. The difference is $30,000 of tax the estate does not pay, provided the company’s documents and its board let the shares pass under the secondary will without a certificate. Victor’s two wills each exclude the other from their revocation clauses, and his shareholders’ agreement is updated at the same time so it says the same thing.
Other pieces that often go with it
Business owners who use two wills often also review their shareholders’ agreement (so it says what happens to their shares on death), name a power of attorney who can vote the shares if they become ill, and talk to their accountant about tax on death and whether an estate freeze makes sense. Our wider guide to estate planning for business owners pulls these together.
If you own a company and your will is more than a few years old, a short review is usually worth it. Your first consultation takes 30 minutes, by video or in person.
Our estate planning for business owners section shows how those pieces fit together.
Common mistakes
- A standard revocation clause in both wills. The later will can wipe out the earlier one.
- Vague asset descriptions. If it is unclear which will covers an asset, the estate trustee may have to treat it as part of the primary will.
- Putting probate assets in the secondary will. A bank account or real estate in your own name usually needs a certificate, which defeats the purpose.
- Ignoring the company’s articles and agreements. They decide whether the shares can move without a court certificate.
- Different estate trustees who do not talk to each other. The two wills cover one estate, and the debts still have to be paid.
- Never revisiting the plan. A new company, a sale or new shareholders can change what each will needs to cover.
What to do this week
- List the companies you own shares in, with a rough value for each.
- Find your current will and check whether it covers your shares.
- Find your articles of incorporation and any shareholders’ agreement, and look for clauses about death or transfers.
- Note who the directors would be if you died tomorrow.
- Ask your accountant whether tax on death or an estate freeze should be part of the conversation.
- Book a review of both wills together. You can request a consultation here.
Frequently asked questions
Is it legal to use two wills in Ontario?
Yes. Ontario’s Estate Administration Tax guidance and Rule 74.04(1)(g) both deal with a certificate limited to the assets in one will, which is the court process a primary will uses.
Do both wills have to be signed at the same time?
They are usually signed together, so they are consistent and neither revokes the other. Each must meet the full signing rules on its own.
Can real estate go in the secondary will?
Real estate in your own name usually needs a certificate to be sold or transferred, so it normally belongs in the primary will. Real estate owned by your company belongs to the company, not to you, so it is not dealt with directly by either will.
Does a secondary will avoid income tax on death?
No. It concerns Estate Administration Tax and probate. Income tax on death is a separate question for your accountant.
What if the secondary will assets later need a certificate?
If an institution insists on one, the estate trustee may have to apply for a certificate for those assets too, and tax would then be payable on their value.
Can I add a secondary will to my existing will?
It is usually cleaner to sign two new wills together, so the revocation clauses and asset descriptions fit each other.
Sources
- Estate Administration Tax Act, 1998, S.O. 1998, c. 34, Sched., ss. 1, 2(1) and 2(6.1)
- Ontario.ca: Estate Administration Tax (when the value of the estate is based on assets limited to a will)
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 74.04(1)(g) (Form 74I draft order)
- Estates Act, R.S.O. 1990, c. E.21, s. 32(3) (statement of value for a limited grant)
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 15 (revocation)
- Business Corporations Act, R.S.O. 1990, c. B.16, ss. 67 and 141 (recognizing an estate trustee; securities register)
- Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 7(2)
This article is general information about Ontario law, not legal advice for your situation. Laws change; it reflects our understanding as of October 26, 2026.
