Most people know they should have a will and put it off anyway. The problem is what happens if you never get to it: Ontario law, not you, decides who raises your children, who manages your money, and who inherits. This guide explains what a will does, what a full estate plan includes, and what every family in Ontario should understand before something happens.
Estate planning in Ontario is provincial law, so these rules apply across the province, including in Orangeville and the surrounding region where Foote Law works with families.
Do You Need a Will in Ontario?
There is no law requiring you to have a will. But if you die without one, the province’s rules take over, and they rarely match what you would have chosen. A will is the only way to decide for yourself who inherits, who manages your estate, and who becomes guardian of your children.
Some people can afford to wait less than others. You should not put it off if you:
- Have children under 18
- Own a home or other property
- Are married, separated, or in a common-law relationship
- Own a business
- Want to provide for someone with a disability
- Have specific wishes about who gets what
What Happens If You Die Without a Will
Dying without a will is called dying intestate. Your estate is then divided by a fixed formula in the Succession Law Reform Act, after debts and funeral costs are paid.
- A spouse and no children: the spouse inherits everything.
- A spouse and children: the spouse receives the first $350,000, called the preferential share, and the amount left over is divided between the spouse and the children in fixed proportions set by law.
- Children and no spouse: the children share the estate equally.
- No spouse and no children: the estate passes to parents, then siblings, then further relatives.
Two points surprise people most. A common-law partner inherits nothing under these rules, no matter how long they were together. And a minor child’s share is held by the court until they turn 18, which can leave the surviving parent unable to access it for the child’s needs.
The full breakdown, including how the formula works when there are children, is in our guide to what happens if you die without a will in Ontario.
What Makes a Will Valid in Ontario
A will only works if it meets the legal requirements. Ontario recognizes two kinds.
Formal Wills
A formal will must meet four requirements:
- It is in writing, typed or handwritten.
- The person making it, the testator, signs it at the end.
- Two witnesses watch the testator sign at the same time and then sign it themselves.
- The testator is at least 18 and of sound mind, meaning they understand what they own, who would normally expect to benefit, and what the will does.
Holographic Wills
A holograph will is written entirely in the testator’s own handwriting and signed by them. It needs no witnesses. These are valid but risky, because handwritten wills often leave gaps or unclear wording that cause disputes later.
Who Cannot Be a Witness
A witness, or the spouse of a witness, cannot inherit under the will. If one of them does witness it, the gift to that person is void, unless the will was also properly witnessed by two other independent people. The will itself stays valid either way. For that reason, witnesses should be people who take nothing under the will.
What a Will Costs and How to Make One
You do not need a lawyer to make a valid will in Ontario, and you have three main options:
- A do-it-yourself kit or online platform, the cheapest route, but the easiest to get wrong through witnessing errors or unclear wording.
- A holograph will be free but suited only to the simplest situations.
- A lawyer-drafted will, which for a straightforward estate typically costs about $300 to $1,000 for one person, or up to roughly $1,500 for a couple, and is worth it once children, property, a business, or a blended family is involved.
The cost of a will is almost always far smaller than the cost of fixing an invalid one or of an intestacy your family did not want.
What a Will Does, and What It Does Not Cover
A will controls the assets that pass through your estate. It does not control everything you own, because some assets pass outside the will automatically:
- Property held jointly with right of survivorship, which passes straight to the surviving owner.
- Assets with a named beneficiary, such as RRSPs, TFSAs, and life insurance, which go directly to that person.
This matters, because these assets go to the named beneficiary or surviving owner regardless of what your will says, since they pass outside your will entirely. Your will and your beneficiary designations need to agree, or your estate may not be divided the way you intended.
Who to Name in Your Will
Your will names the people who carry out your wishes and inherit your estate. Three roles matter most.
Your Executor
Your executor, also called an estate trustee, is the person who administers your estate: paying debts, filing taxes, and distributing what remains. It is a real job, sometimes a demanding one, so it should go to someone organized, trustworthy, and willing to do it. Choosing the right person is important enough that we cover it fully in our guide to how to choose the right executor for your will in Ontario.
A Guardian for Your Children
If you have children under 18, your will is where you name who would raise them if you could not. Without that choice on record, a court decides, and it may not choose who you would have. For parents of young children, this is often the single most important reason to have a will.
Your Beneficiaries
Your beneficiaries are the people or organizations who inherit. Name them clearly, and think carefully before leaving a gift directly to a minor, because a child’s inheritance is held by the court until they turn 18. A trust set up in the will is usually the better way to provide for a young beneficiary.
Marriage, Separation, and Divorce
Changes in your relationships change your will, and Ontario updated these rules in 2022. Three points matter.
Marriage no longer revokes your will. Before 2022, getting married automatically cancelled an existing will. That is no longer the case, so a will made before your marriage stays valid after it.
Divorce and separation usually cut out your former spouse. Unless your will clearly says otherwise, a gift to your former spouse and their appointment as executor are treated as though they died before you, so they take nothing and do not act. This applies on divorce, and now on separation as well, where you have lived apart for three years or have a separation agreement, court order, or family arbitration award.
These default rules can produce a result you did not intend, so you should review your will whenever your relationship status changes rather than rely on them.
Can Someone Challenge Your Will? Dependant Support Claims
A will does not always have the final say. Under the Succession Law Reform Act, certain people who depended on you can ask a court for support from your estate, even if your will leaves them little or nothing.
A claim can be brought by a spouse, including a common-law spouse, a child, a parent, or a sibling. A child can claim whether they are a minor or an adult. In every case, the person must have been someone you were supporting or were legally required to support just before your death. A claim must generally be started within six months of the estate trustee being appointed, so the deadline is short.
This is also the one route available to a common-law partner. Because a common-law partner inherits nothing under the intestacy rules, a dependant support claim is often their only way to seek a share of the estate.
The Other Documents Your Estate Plan Needs
A will takes effect only after you die. It does nothing while you are alive but unable to make decisions, which is what the other core documents are for. A complete estate plan includes three things beyond the will.
Power of Attorney for Property
This document names someone to manage your finances, your bank accounts, bills, property, and investments, if you become unable to manage them yourself. Without it, and depending on the circumstances, your family may have to apply to the court to be appointed, which is slow and costly.
Power of Attorney for Personal Care
This document names someone to make decisions about your health and personal care, including medical treatment and where you live, if you cannot make those decisions yourself.
Beneficiary Designations
The named beneficiaries on your RRSPs, TFSAs, and life insurance decide who receives those assets, separately from your will. Reviewing these designations is part of estate planning, because an outdated one, such as a former spouse still named on a policy, can undo what your will intends.
Probate and the Estate Administration Tax
Probate is the court process that confirms your will is valid and gives your executor the authority to act. Not every estate needs it, but many do, particularly where the deceased owned real estate in their name alone or where a financial institution requires it before releasing assets.
When an estate is probated, Ontario charges the Estate Administration Tax:
- Nothing on the first $50,000 of the estate
- $15 for every $1,000 above $50,000, which is 1.5%
On a $500,000 estate, the tax is about $6,750. Some assets are not counted because they pass outside the estate: jointly held property and assets with a named beneficiary. With careful planning you can reduce what your estate pays, which is one reason to get advice when the estate is sizable.
When an Estate Needs More Than a Basic Will
Some situations call for planning a simple will that cannot be handled on its own:
- Blended families, where you want to provide for a current spouse and also children from an earlier relationship, whose interests can conflict.
- Business owners, where the business needs to keep running and pass on without forcing a sale.
- A beneficiary with a disability, where a direct gift could disqualify them from disability benefits. A properly drafted trust, known as a Henson trust, can provide for them without that consequence.
- Young children, where a trust in the will controls when and how they receive their inheritance instead of a lump sum at 18.
If any of these apply to you, a basic will is a starting point, not the whole answer.
How to Store Your Will and When to Update It
A will only helps if your executor can find the signed original. Store it somewhere safe and accessible, such as with your lawyer or in a secure location your executor knows about, and tell your executor where it is. A photocopy is not a substitute for the signed original, and an unsigned draft has no legal effect at all.
Review your will after any major life change, including:
- Marriage or a new common-law relationship
- Separation or divorce
- The birth or adoption of a child
- The death of an executor, guardian, or beneficiary
- Buying a home or a major change in your assets
- A move to or from another province or country
Speak With a Wills and Estates Lawyer in Orangeville
A will and a full estate plan are how you decide what happens to the people and things you care about, instead of leaving those decisions to a fixed set of rules. The right documents, kept up to date, spare your family confusion and cost at the worst possible time.
Foote Law helps families across Ontario with wills, powers of attorney, and estate planning, from our office in Orangeville and virtually throughout the province. We accept Legal Aid Ontario certificates. Contact Foote Law today to schedule a confidential consultation.
