The Corporate Will

What is it?

The first thing that should be understood is that the term “Corporate Will” is probably misleading. Many people assume it is some sort of Will for their company(ies). The problem with that idea is that companies don’t die, so a company doesn’t need a Will. The better term is “Restricted Will.”

The general concept is that an individual makes a normal, personal Will (the “Personal Will”) that deals with most of their assets, but that individual would then also have an additional Will that deals with a separate group of their assets (the “Restricted Will”). In the vast majority of cases, these separate assets are shares in one or more small/medium-sized companies that the individual owns and controls. Because this Restricted Will usually only deals with shares in these companies, the term “Corporate Will” has arisen but, in reality, what is being done is that a separate and additional Restricted Will is being created to deal with a separate group of assets.

What’s the point of it?

The entire purpose of a Restricted Will is to save probate fees when the individual passes away. Probate fees are payable to the Supreme Court of BC when an estate is probated and they are equal to approximately 1.4% of the value of the estate. Below is an example to explain how this works.

Let’s assume that Mr. Smith has passed away and his estate is worth $10,000,000. He only has a standard Personal Will that says he leaves everything he owns to his children equally. When he died, he had 3 assets: a house worth $2,000,000; a bank account with $1,000,000; and shares in Smith Holdings Ltd. worth $7,000,000 (a company he started 30 years ago which he now co-owns with his children). The remaining Directors of Smith Holdings Ltd. (his children) would be willing to transfer Mr. Smith’s shares in the company to themselves equally without requiring a Probate Order from the Court, but the Land Title Office won’t allow Mr. Smith’s Executor to sell the house without a Probate Order, and the bank won’t allow the Executor to access the money in the bank account without a Probate Order either. So, the Executor must apply for a Probate Order and must, by law, include ALL of Mr. Smith’s assets within the Probate Application. The probate fees payable on $10,000,000 would be $140,000.

However, if we took the exact same scenario above, but this time Mr. Smith had a Personal Will to deal with the house and bank account that leaves these assets to his children equally, and a Restricted Will to deal with his shares in Smith Holdings Ltd. that leaves these assets to his children equally, we have a very different financial outcome. In this scenario, the Executor of the Restricted Will could deal with the shares and transfer them to the children equally without the need of a Probate Order. The Executor of the Personal Will would still need to obtain a Probate Order in order to access the house and bank account, but now this Executor is only making a Probate Application worth $3,000,000, and therefore the probate fees payable would only be $42,000. Having the Restricted Will would save Mr. Smith’s estate $98,000 in this case.

The Personal Will and the Restricted Will can be identical in how their respective assets are distributed, but they do require two separate Executors.

Summary

A Restricted Will is typically only of value if you own shares in a relatively small and privately controlled Canadian company, and these shares are worth a significant amount. But, for those who do own these types of company shares, the concept can create substantial savings for their estates.

The information above is intended to provide a very high-level and general overview of some of the common questions that we receive related to Restricted Wills. However, each estate is different and unique, and we suggest you contact one of our lawyers if you have further questions.

© Linley Welwood LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.