Key Takeaways:
- A will in Ontario must be written, signed by the testator, and witnessed by two people who aren’t beneficiaries to be legally valid
- Over 51% of Canadians don’t have a will, leaving their families to navigate Ontario’s rigid intestacy laws
- Common-law partners have no automatic inheritance rights under Ontario law without a will
- The current preferential share for surviving spouses is $350,000 (as of March 2021), with the remainder split with children
- Executors have extensive legal responsibilities including securing assets, paying debts, and distributing inheritances according to the will
- Major life events (marriage, divorce, children, property purchases) require immediate will updates to remain valid
- Probate may be required for estates with real estate or when financial institutions demand proof of authority
Stop putting off the most important document your family will ever need.
What is a will? A will is a legal document that takes effect when you die. It explains your wishes about how your property and possessions should be taken care of and distributed, for example, how much money should be paid to a specific person or charity. But in Ontario, it’s much more than just a piece of paper – it’s your final act of love and protection for the people who matter most to you.
As a family lawyer who has practiced in Ontario since founding Nussbaum Law in 2012, I’ve seen firsthand what happens when people die without a will. The chaos. The family disputes. The government making decisions that should have been yours. That’s why I’m going to walk you through everything you need to know about wills in Ontario – because your family deserves better than legal uncertainty.
Why Your Will Matters More Than You Think
Let me be direct: over 51% of Canadians don’t have a will, and if you’re reading this, you might be one of them. But here’s what most people don’t understand about Ontario law – without a will, you’re not just leaving your family to grieve. You’re leaving them to battle through a legal system that doesn’t know your wishes, your values, or what you actually wanted for your children.
The truth is, a will in Ontario isn’t just about who gets your money. It’s about who raises your children if something happens to you and your spouse. It’s about whether your common-law partner gets anything at all (spoiler alert: they don’t under Ontario’s intestacy laws). It’s about whether your family waits months or years to access your assets while the courts sort everything out.
What Makes a Will Legal in Ontario
Ontario’s Succession Law Reform Act sets out the requirements for a valid legal will in Ontario. As your lawyer, I need you to understand these requirements aren’t suggestions – they’re absolute necessities. Miss even one, and your will could be worthless.
The Non-Negotiable Requirements
Age and Mental Capacity: You must be at least 18 years old when you make the will and of sound mind. This means you understand what you own, who your beneficiaries are, and what happens when you sign that document.
Written Document: A will must be in writing – no video recordings, no verbal promises, no electronic documents. Ontario requires a physical copy that you can hold in your hands.
Proper Signature: A will must be dated and signed at the end by the testator. And here’s something most people get wrong – anything written after your signature becomes invalid.
Witness Requirements: Unless you’re writing a completely handwritten will, you need two valid witnesses who are present when you sign. These witnesses cannot be beneficiaries of your will or married to beneficiaries.
The Three Types of Wills in Ontario
Formal Wills: Written with the assistance of counsel, which requires two witnesses. This is what I recommend for most families because it provides the strongest legal protection.
Holographic Wills: Personally written by the testator, that doesn’t need to be witnessed. While legal, these are risky because they’re more likely to be challenged in court.
Living Wills: Effective only from the time that the testator becomes incapacitated, until their death. These govern healthcare decisions, not asset distribution.
What Your Will Must Include
Every effective will in Ontario needs these essential elements:
1. Clear Identification
Start with your full legal name, address, and the date. Title your document “Last Will and Testament of [Your Name].”
2. Executor Appointment
A person named as an estate trustee in a will is responsible for collecting the estate assets and distributing the residue of the estate to those who are entitled to it. Choose someone you trust completely – they’ll be dealing with your family’s financial future.
3. Asset Distribution
List your assets and specify exactly who gets what. Be specific about:
- Real estate properties
- Bank accounts and investments
- Personal possessions
- Business interests
- Life insurance policies
4. Guardianship Provisions
If you have minor children, name guardians who will raise them if both parents die. This is perhaps the most important decision you’ll make in your will.
5. Residuary Clause
This covers anything you forgot to mention specifically. Without it, unnamed assets could end up distributed under intestacy laws.
The Brutal Reality of Dying Without a Will in Ontario
When someone dies without a will in Ontario – what lawyers call dying “intestate” – the government gets to use provincial laws, referred to as intestate succession laws, to decide how to distribute your estate. Let me show you exactly what this looks like:
How Your Estate Gets Divided
If the deceased had assets worth less than $200,000 at the time of their death their spouse will be entitled to the entire estate. But if your estate is worth more than $350,000 (the current preferential share), here’s how Ontario divides it:
Married with Children: The surviving spouse gets the first $350,000 and the rest is split between spouse and children. If you have one child, they split the remainder 50/50. If you have multiple children, your spouse gets one-third and your children get two-thirds.
Common-Law Partners: Common-law partners are not recognized as a “spouse” for intestate succession, leaving them potentially without a claim to their partner’s estate. This is devastating for couples who thought they were protected.
No Spouse, Only Children: Your estate gets divided equally among your children. If they’re minors, the inheritance for the minor is typically paid into court and the child receives it when they turn 18.
The Hidden Costs of Intestacy
Beyond the emotional toll, dying without a will creates significant practical problems:
- Estate Trustee Appointment: The estate trustee without a will must post a bond equal to double the value of the estate
- Extended Timeline: Probate without a will is more complex and time-consuming, with additional notice and consent requirements
- Family Disputes: When the law makes decisions instead of you, families fight about who gets what
- No Charitable Giving: If you’d intended to leave some money to a close friend, a more distant relative or a charity, this won’t happen if you die without leaving a will
Understanding Probate in Ontario
Probate is a procedure to ask the court to either give a person the authority to act as the estate trustee of an estate, confirm the authority of a person named as the estate trustee in the deceased’s will and formally approve that the deceased’s will is their valid last will.
When Probate is Required
Probate is not always required in order to administer an estate. The type of assets in the estate usually determine whether an estate should be probated. You’ll typically need probate when:
- The estate includes real estate solely owned by the deceased
- Financial institutions require proof of authority to release funds
- There’s a dispute about who should be the estate trustee
- There is a dispute or potential dispute about the validity of the will
The Probate Process
You can apply for a Small Estate Certificate if the estate is valued at up to $150,000. If the estate is valued at more than $150,000, you can apply for a Certificate of Appointment of Estate Trustee.
The process involves:
- Filing proper court documents
- Paying estate administration tax
- Submitting to Ontario Superior Court of Justice
- Waiting for court approval
Your Executor’s Critical Role
Executors in Ontario have a fiduciary duty to manage the estate’s assets, settle debts, and distribute inheritances according to the will or intestacy laws. This isn’t just an honor – it’s a massive responsibility that includes:
Immediate Responsibilities
- Obtaining death certificates
- Securing the deceased’s residence and assets
- Notifying relevant parties
- Arranging funeral services
Ongoing Duties
- Opening estate accounts at a bank or financial institution
- Paying debts and taxes
- Preparing financial records in proper Court form, and presenting the records to the Court for approval
- Managing estate investments
- Distributing assets to beneficiaries
Legal Obligations
Your executor must keep detailed records of every transaction and decision. The executor must be able to satisfy the Court and beneficiaries that the estate has been administered properly.
Common Will Mistakes That Cost Families
In my practice, I see these errors repeatedly:
1. Choosing the Wrong Executor
Your executor needs to be organized, trustworthy, and willing to handle complex financial and legal matters. Don’t choose someone just because they’re your oldest child or closest friend.
2. Not Updating After Life Changes
Marriage, divorce, new children, property purchases – all of these require will updates. An outdated will can be worse than no will at all.
3. Ignoring Tax Implications
Without proper planning, your estate could face significant tax consequences that reduce what your beneficiaries receive.
4. Failing to Communicate with Family
Surprises in wills lead to family disputes. Have conversations with your beneficiaries about your plans.
5. DIY Wills with Legal Errors
While it is legal to write your own will as long as you’ve met all the criteria for a legal will, small mistakes can invalidate the entire document.
Protecting Your Family’s Future
Creating a will isn’t just about following legal requirements – it’s about protecting your family when they’re most vulnerable. Here’s what a properly drafted will accomplishes:
Financial Security
Your will ensures your assets go where you want them to go, not where the government decides. This is especially crucial for:
- Blended families
- Common-law couples
- Business owners
- Parents with minor children
Peace of Mind
Knowing your wishes are documented and legally enforceable allows you to focus on living your life, not worrying about what happens after you’re gone.
Family Harmony
Clear instructions prevent disputes and confusion among grieving family members. Your will becomes a roadmap for your loved ones during their most difficult time.
When to Update Your Will
Your will isn’t a “set it and forget it” document. Ontario law and your personal circumstances change, requiring updates:
Major Life Events
- Marriage or divorce
- Birth or adoption of children
- Death of beneficiaries or executors
- Significant changes in assets
- Moving to a different province
Legal Changes
Ontario’s succession laws evolve. The preferential share allotted to a surviving spouse in the event of intestacy has seen an increase, moving from $200,000 to $350,000 for deaths after March 1, 2021.
Taking Action: Your Next Steps
If you don’t have a will, you’re not alone – but you’re not protected. Here’s what you need to do:
Step 1: Gather Your Information
Make a list of:
- All your assets and their approximate values
- Your debts and obligations
- Potential beneficiaries
- Possible executors
- Guardians for minor children
Step 2: Consider Your Options
While you can write your own will, the legal requirements are strict and the consequences of errors are severe. Just remember to follow all the signing and witnessing requirements for the type of will you’ve created.
Step 3: Get Professional Help
Given the complexity of Ontario succession law and the importance of getting it right, consulting with an experienced wills and estates lawyer protects your family’s future and your wishes.
What Is a Will and How We Can Help
A will in Ontario is more than a legal document – it’s your final gift to your family. It’s protection from uncertainty, comfort during grief, and proof that you cared enough to plan for their future.
Every day you delay creating or updating your will is another day your family remains vulnerable to Ontario’s rigid intestacy laws. Your spouse might not get what you intended. Your children might not be raised by who you would choose. Your hard-earned assets might not go where you wanted.
But here’s the good news: it’s never too late to take control. Whether you’re 25 or 85, married or single, wealthy or middle-class, a properly drafted will gives you the power to protect your loved ones and honor your values even after you’re gone.
Don’t let the government make your family’s most important decisions. Take action today, because your family deserves the security and peace of mind that comes from knowing your wishes will be respected and your legacy will be preserved.
The question isn’t whether you need a will in Ontario – it’s whether you’re ready to give your family the protection they deserve. Your will is your voice when you can no longer speak for yourself. Make sure it says exactly what you want it to say.
