How to Do a Will in Ontario: Guide to Creating a Legal Will
Creating a will in Ontario ensures your wishes are followed after death. It protects your loved ones from difficult decisions during a time of grief.
A will is a legal document that explains how your property and possessions should be distributed. It also names who will manage your estate.
Without proper estate planning, Ontario law decides who receives your assets and how much they get.
Anyone at least 18 years old and mentally capable can make a valid will in Ontario. There are specific legal requirements to ensure the document is legally binding.
The process involves understanding different types of wills and choosing the right people for key roles. You must also ensure all legal formalities are met.
You can prepare your own will or hire a lawyer. The best choice depends on the complexity of your situation and assets.
This guide explains the basic legal requirements and types of wills in Ontario. It also provides a step-by-step process for creating your last will and testament.
You will learn about related documents like powers of attorney. The guide covers what happens if someone dies without a will and how estates are administered in the province.
Understanding Wills in Ontario
A will controls how assets are distributed after death. An estate includes all property and debts left behind.
A properly made will provides clear instructions for beneficiaries. It helps prevent legal complications.
What Is a Will?
A will takes effect when someone dies. It explains how their property and possessions should be distributed.
The document can specify how much money goes to each person or charity. It can also name guardians for children under 18 years old.
Key components of a will include:
Instructions for distributing assets
Named beneficiaries who receive property or money
An estate trustee to manage the estate
Guardianship arrangements for minor children
Ontario recognizes three main types of wills. A formal will is typed and signed in front of two witnesses.
A holographic will is completely handwritten and signed by the person making it. A notarial will may be valid if created in Quebec or another jurisdiction.
Most people benefit from a formal will prepared with legal help. This type ensures all requirements are met properly.
Benefits of Having a Will
Making a will ensures your wishes are followed after death. Without a will, Ontario law decides who gets the estate and how much they receive.
A will helps protect families from making difficult choices while grieving. It prevents disputes between family members about asset distribution.
Having a will allows you to:
Choose specific beneficiaries for your property
Name an estate trustee you trust
Provide for charities or causes you support
Minimize delays in distributing assets
The document also helps reduce legal costs and court involvement. Families can avoid expensive lawsuits when someone dies without a will.
A properly prepared will can address tax planning. This helps preserve more wealth for beneficiaries.
Legal Effects of a Will
A will becomes legally binding when the person dies. The estate trustee named in the document must follow its instructions.
The will overrides previous versions and cancels conflicting instructions. Only the most recent valid will has legal effect.
Legal requirements for a valid will in Ontario:
Person must be at least 18 years old
Must have mental capacity to understand their actions
Document must be signed at the end
Two witnesses must sign (unless it's holographic)
If someone dies without a will, the Succession Law Reform Act determines asset distribution. The court appoints an administrator to manage the estate instead of a chosen estate trustee.
Beneficiaries named in the will have legal rights to receive their inheritance. The estate trustee must distribute assets according to the will's terms.
Legal Requirements for a Valid Will
Ontario's Succession Law Reform Act sets out specific legal requirements for a will to be binding. The testator must meet age and capacity requirements, follow proper writing and signing procedures, and use correct witnessing protocols.
Capacity and Eligibility of the Testator
The testator must be at least 18 years old to create a valid will in Ontario. This age requirement is clearly defined in the law.
The testator must also be of sound mind when creating the document. Sound mind means understanding what a will does and knowing what property they own.
They must also understand who their family members are and how the will affects these relationships. The testator should recognize the consequences of their decisions about distributing their assets.
Mental capacity can be an issue if someone has dementia or other cognitive impairments. If capacity is questioned, medical evidence may be needed to prove the testator understood what they were doing.
Form and Writing Requirements
A will in Ontario must be in writing to be valid. The document can be typed or handwritten.
The will must be dated to show when it was created. This date is important if multiple versions exist.
Holographic wills are entirely handwritten and signed by the testator. These wills do not need witnesses under Ontario law.
However, they may face more legal challenges than formal wills. Formal wills are the most common type and offer better legal protection.
Formal wills can be typed or handwritten but must follow strict witnessing rules.
Signature and Witnessing Rules
The testator must sign the will in the presence of two adult witnesses. Both witnesses must be present at the same time when the testator signs.
The two witnesses must then sign the will themselves. This creates proof that the proper signing procedure was followed.
Critical rule: Witnesses cannot be beneficiaries of the will. If a witness is named to receive something in the will, they will lose their inheritance.
Witnesses also cannot be married to beneficiaries. This rule prevents conflicts of interest and protects the will's validity.
The witnesses do not need to read the will's contents. They only need to see the testator sign and confirm the person appears to understand what they are doing.
Virtual Witnessing
Ontario introduced virtual witnessing options during the COVID-19 pandemic. This allows witnesses to observe the signing through video technology in specific circumstances.
The testator and witnesses must be able to see and communicate with each other clearly through the video connection. All parties must sign their own copies of the same will document.
Virtual witnessing has strict technical requirements. The Law Society of Ontario provides guidance on proper procedures for legal professionals using this method.
This option remains available but requires careful attention to legal procedures. Most people still choose in-person witnessing because it is simpler and less likely to cause problems.
Types of Wills in Ontario
Ontario recognizes three main types of wills. Each option has different requirements for witnesses, signatures, and legal validity.
Formal Wills Prepared by Lawyers
Formal wills are typed documents that estate lawyers prepare for their clients. These wills must follow specific legal requirements to be valid in Ontario.
The testator must sign the will at the end of the document. Two witnesses must watch the person sign their will and then sign the will while they are together.
Key Requirements:
Must be in writing (typed or printed)
Signed by the testator at the end
Two witnesses present during signing
Witnesses must sign in each other's presence
Estate lawyers ensure these wills meet all legal standards. They help people avoid common mistakes that could make a will invalid.
This option costs more money but provides the most legal protection. Formal wills work best for people with complex estates or family situations.
Holograph Wills
A holograph will is completely handwritten and signed by the testator. Ontario law does not require witnesses for this type of will.
The entire document must be in the person's own handwriting. Typed sections or pre-printed forms make a holograph will invalid.
The testator must sign the will, but witnesses are not needed.
Benefits of holographic wills:
No witnesses required
Can be written anywhere
Costs nothing to create
Private and confidential
Risks include:
Easy to challenge in court
May contain unclear language
Could be lost or destroyed
No legal review before signing
People should only use holograph wills in emergency situations or when they cannot access other options.
Will Kits and Online Wills
Will kits are pre-made forms you can buy online or in stores. Online wills use digital platforms to create legal documents at home.
These options cost less than hiring estate lawyers. Will kits contain blank spaces for your information. Online platforms guide you through questions to create your will.
Both methods create formal wills that need two witnesses. The same signing rules apply as lawyer-prepared wills.
The testator signs first, then both witnesses sign together.
Popular features:
Step-by-step instructions
Lower cost than lawyers
Can complete at home
Templates for common situations
Will kits and online wills work well for people with simple estates. Those with complex family situations or valuable assets should consult estate lawyers.
Key Roles and Appointments in Your Will
Making a will requires naming specific people to carry out important responsibilities. The executor manages your estate, beneficiaries receive your assets, guardians care for minor children, and trustees handle special financial arrangements.
Executor and Estate Trustee
The executor, also called an estate trustee in Ontario, handles all aspects of settling your estate after death. This person takes on significant legal and financial responsibilities.
Key duties include:
Filing your will with the court
Paying debts and taxes
Distributing assets to beneficiaries
Managing estate paperwork and legal requirements
Choose someone who is trustworthy and organized. It helps if they live in Ontario and are comfortable handling financial matters.
Consider naming a backup executor in case your first choice cannot serve. You can also appoint co-executors to share the workload, though this may complicate decision-making.
Important considerations:
Discuss the role with your chosen person before naming them
Executors can be paid for their work from the estate
The role can be time-consuming and stressful
Beneficiaries
Beneficiaries are people or organizations who will receive your property and assets. Include their full legal names and current addresses to avoid confusion.
Types of beneficiaries:
Primary beneficiaries: First in line to receive specific gifts or portions of your estate
Contingent beneficiaries: Receive assets if primary beneficiaries cannot
Residual beneficiaries: Receive what remains after specific gifts and debts are paid
List all dependents who rely on you financially. This includes children, disabled family members, or anyone you support regularly.
Ontario law allows these people to challenge your will if they are not adequately provided for.
Consider naming backup beneficiaries for each gift. If your first choice dies before you or cannot inherit, the backup person receives the asset instead.
Guardian for Minor Children
Parents with children under 18 must name guardians in their will.
These people will care for your children if both parents die.
Two types of guardians:
Guardian of the person: Provides day-to-day care and makes medical and education decisions
Guardian of property: Manages money and assets left to the children
You can name the same person for both roles or choose different people.
The guardian of the person should share your values about child-rearing.
The guardian of property should have good money management skills.
Selection tips:
Choose people who know and love your children
Consider their age, health, and financial situation
Discuss your wishes with potential guardians first
Name backup guardians in case your first choice cannot serve
Trustee for Special Arrangements
Trustees manage money or property for beneficiaries who cannot handle these responsibilities themselves.
This role becomes important in specific situations.
Common trustee arrangements:
Managing inheritances for children until they reach a certain age
Overseeing funds for beneficiaries with disabilities
Handling complex assets like business interests or investments
Choose trustees who understand financial management and legal responsibilities.
They must act in the beneficiary's best interests and follow the terms you set in your will.
Trustee responsibilities:
Investing and protecting trust assets
Making distributions according to your instructions
Keeping detailed financial records
Filing tax returns for the trust
Consider naming corporate trustees like trust companies for large or complex arrangements.
They provide professional management but charge fees for their services.
Steps to Make a Will in Ontario
Making a will in Ontario involves four key steps.
You need to gather information about your assets, write the legal document, sign it with witnesses, and store it safely with regular updates.
Each step has specific requirements to make the will legally valid.
Inventory and Value Your Estate
The first step is to make a complete list of all assets and debts.
This includes real estate, bank accounts, investments, personal belongings, and life insurance policies.
List each item with its estimated value.
This helps you decide how to divide assets among beneficiaries.
Key items to include:
Real estate properties
Bank accounts and GICs
Investment portfolios
Vehicles and boats
Jewelry and collectibles
Business interests
Outstanding debts and mortgages
Estate lawyers recommend updating this inventory yearly.
Asset values can change, and new purchases or sales should be noted right away.
Drafting Your Will
Write the legal document using clear language and the right format.
The will must state who gets what assets and name an executor to handle the estate.
Include your full legal name and address.
Title the document "Last Will and Testament" with the current date.
Number each page if the will has multiple pages.
Essential elements include:
Appointment of executor
Guardian for minor children
Specific bequests of property
Distribution of remaining assets
Instructions for funeral arrangements
You can write your own will, use a will kit, or hire estate lawyers.
Handwritten wills are legal in Ontario but may cause problems later.
Typed wills are usually clearer and easier to understand.
Choosing Witnesses and Signing
Ontario law requires two adult witnesses to make a will valid.
The witnesses cannot receive anything from the will and must see you sign the document.
You must sign first while both witnesses watch.
Then both witnesses sign while everyone is still present.
All three signatures should happen on the same day.
Witness requirements:
Must be 18 years or older
Cannot be beneficiaries
Should not be married to beneficiaries
Must be mentally capable
Good witness choices include friends, neighbours, or coworkers who know you well.
Family members who inherit from the will cannot serve as witnesses.
Storing and Updating Your Will
Keep the original will in a safe place where the executor can find it.
Many people use a safety deposit box, home safe, or give it to their lawyer.
The executor should know where to find the will.
Some people register their will location with the Ontario Will Registry for a small fee.
Update the will when:
Getting married or divorced
Having children or grandchildren
Major changes in finances
Moving to another province
Executor becomes unable to serve
Marriage automatically cancels a previous will in Ontario.
Divorce does not cancel a will but removes the former spouse as a beneficiary.
Regular reviews help ensure the will reflects your current wishes and circumstances.
Powers of Attorney and Related Documents
Powers of attorney are separate legal documents from your will.
They protect you during your lifetime if you become unable to make decisions.
These documents appoint trusted people to handle your finances and personal care when you cannot do so yourself.
Power of Attorney for Property
A power of attorney for property gives someone authority to make financial decisions for you.
This legal document covers bank accounts, investments, real estate, and business matters.
Key responsibilities include:
Paying bills and managing bank accounts
Filing tax returns
Managing investments and property
Making insurance claims
The person you choose does not need to be a lawyer.
They should be trustworthy and good with money.
You can create a continuing power of attorney that stays valid if you become mentally incapable.
You can also make it effective immediately or only when you become incapacitated.
Legal requirements:
Must be signed by you
Needs two witnesses who are not beneficiaries
Should follow Law Society of Ontario guidelines
Without this document, your family may need court approval to manage your finances.
This process takes time and costs money.
Power of Attorney for Personal Care
A power of attorney for personal care lets someone make health and lifestyle decisions when you cannot.
This covers medical treatment, housing, and daily care needs.
Decisions they can make:
Medical treatments and procedures
Where you live
What you eat
Clothing and personal care
Your attorney should know your values and wishes about medical care.
Discuss your preferences with them before signing the legal document.
Important notes:
Spouses do not automatically have this power
Must be signed with two witnesses present
Takes effect only when you cannot make decisions yourself
If you cannot read the document, someone must read it aloud to you with both witnesses present.
This document works alongside your will but serves a different purpose.
Your will handles what happens after death, while this handles decisions while you are alive.
Living Wills Versus Wills
A living will is different from your regular will.
It states your wishes for medical treatment when you are dying or permanently unconscious.
Living wills cover:
Life support preferences
Pain management wishes
Organ donation decisions
Religious or spiritual care
Your regular will distributes your property after death.
It has no effect while you are alive.
Key differences:
| Living Will | Regular Will |
|---|---|
| Medical decisions while alive | Property distribution after death |
| Takes effect when incapacitated | Takes effect after death |
| Can be part of personal care POA | Separate legal document |
Many people include living will instructions in their power of attorney for personal care document.
This keeps all your health care wishes in one place.
Both documents protect your family from making difficult decisions without guidance.
They work together as part of your complete estate plan.
What Happens If You Die Without a Will?
If you die without a will in Ontario, you die "intestate."
The Succession Law Reform Act decides who inherits your estate.
The court appoints an estate trustee to manage your affairs.
Specific rules decide how assets get distributed among surviving family members.
Intestacy and the Succession Law Reform Act
The Succession Law Reform Act controls what happens when someone dies without a valid will in Ontario.
This law removes all personal choice about who inherits the estate.
The Act follows a strict formula based on family relationships.
It only recognizes legally married spouses and biological or adopted children as beneficiaries.
Common-law partners have no automatic inheritance rights under this Act.
A common-law spouse receives nothing from the estate, even after decades together.
The law also excludes step-children who were never legally adopted.
Close friends, caregivers, or charities cannot inherit unless they were legally related to the deceased.
If no eligible family members exist, the entire estate goes to the Ontario government.
The Office of the Public Guardian and Trustee takes control of these unclaimed estates.
Distribution of Estate Without a Will
The estate gets divided according to specific rules based on who survives the deceased person.
The distribution depends on whether the person was married and had children.
If married with children:
Spouse receives the first $350,000
Remaining estate splits equally between spouse and children
Children share their portion equally among themselves
If married with no children:
Spouse inherits the entire estate
If unmarried with children:
Children inherit everything equally
If a child died before the parent, their children (grandchildren) inherit that share
If no spouse or children exist:
Parents inherit equally
If no parents, siblings inherit equally
The law continues through extended family members
Beneficiaries under 18 years old cannot receive their inheritance directly.
The Office of the Children's Lawyer may get involved to protect their interests until they reach adulthood.
Appointing an Estate Trustee by Court
Without a will, no one has automatic authority to handle the deceased's affairs.
Someone must apply to court to become the estate trustee.
The court usually appoints the closest eligible family member.
This person takes on the same responsibilities as an executor named in a will.
The estate trustee must:
Collect all estate assets
Pay outstanding debts and taxes
Distribute remaining assets according to the Act
File required court documents
The probate process becomes more complex without a will.
The estate trustee needs court approval before receiving their Certificate of Appointment.
This process takes longer and costs more than when a will exists.
Legal fees often increase because the estate trustee needs professional help with intestacy rules.
Family disputes can arise when the court-appointed person is not who family members expected.
These conflicts can delay the estate settlement for months or years.
Administering and Probating an Estate
The estate trustee has legal duties to manage the deceased person's assets and debts.
The probate process gives the estate trustee official court approval to carry out these responsibilities and distribute assets to beneficiaries according to the will.
Role of the Estate Trustee
The estate trustee acts as the legal representative of the deceased person's estate.
This role comes with significant responsibilities and legal obligations.
Key duties include:
Locating and securing all estate assets
Paying outstanding debts and taxes
Managing estate property until distribution
Keeping detailed records of all transactions
Communicating with beneficiaries about the estate's progress
The estate trustee must act in the best interests of the estate and all beneficiaries.
They cannot make personal gains from estate assets or show favouritism to specific beneficiaries.
Financial responsibilities involve opening an estate bank account and depositing all estate funds.
The trustee pays funeral expenses, outstanding bills, and income taxes from estate money.
The trustee also keeps beneficiaries informed.
They provide updates on the estate's administration and respond to reasonable requests for information.
Applying for Probate
Probate is the court process that validates the will and gives the estate trustee legal authority to act.
The Ontario Superior Court of Justice handles probate applications.
Required documents include:
Original will and any codicils
Estate asset inventory with date-of-death values
Proof that beneficiaries received notice
The estate trustee calculates the Estate Administration Tax before filing.
This tax is based on the total value of estate assets.
Tax rates are:
No fee for estates under $50,000
0.5% on assets between $50,000 and $250,000
1.5% on assets over $250,000
Payment must accompany the application as a certified cheque or money order.
The court reviews the application and issues a Certificate of Appointment of Estate Trustee with a Will.
This certificate proves the trustee's legal authority to banks, government agencies, and other institutions.
Responsibilities in Distributing the Estate
After receiving probate approval, the estate trustee can begin distributing assets to beneficiaries.
This process requires careful planning and attention to legal requirements.
Distribution steps include:
Paying all estate debts and taxes first
Setting aside funds for ongoing expenses
Distributing specific gifts named in the will
Dividing remaining assets according to will instructions
The trustee must obtain proper receipts from beneficiaries for all distributions.
These receipts protect the trustee from future claims.
Before final distribution, the trustee should prepare estate accounts.
These accounts show all money received and paid out during administration.
Beneficiaries have the right to review these accounts and ask questions.
Some trustees seek court approval of accounts for additional legal protection.
The trustee's duties end when all assets are distributed and final tax returns are filed.
They should keep estate records for at least six years after the estate closes.
Conclusion
Creating a will in Ontario requires careful attention to legal requirements and proper execution.
The document must be written, signed by someone 18 or older, and witnessed by two adults who are not beneficiaries.
A properly drafted will protects your loved ones and ensures your wishes are followed.
It eliminates guesswork about asset distribution and can prevent family disputes after death.
Ready to create your will? Contact B.I.G. Probate Law Ontario for expert guidance through the process.
Our experienced team understands Ontario's estate laws and can help ensure your will meets all legal requirements.
Reach us at (289) 301-3338 or Info@probatelaw-ontario.ca for professional assistance.
Visit probatelawgroup.ca to learn more about our services, or book a free consultation to get started today.
Frequently Asked Questions
Many people have common questions when creating a will in Ontario.
These questions often involve costs, legal requirements, and whether professional help is needed.
Do you need a lawyer to do a will in Ontario?
You do not need a lawyer to make a will in Ontario.
The law allows people to write their own wills as long as they meet the basic requirements.
However, lawyers can help with complicated situations.
If someone owns a business or has complex assets, a lawyer may be helpful.
People with simple estates can often make valid wills on their own.
The key is following Ontario's legal requirements exactly.
What is the biggest mistake with wills?
The biggest mistake is not updating a will when life changes happen.
Marriage automatically cancels a will in Ontario unless it was made in contemplation of that marriage.
Having children, getting divorced, or major financial changes should trigger a will update.
Another major mistake is choosing witnesses who are also beneficiaries.
This makes those gifts invalid under Ontario law.
How much does a will cost in Ontario?
A simple will from a lawyer typically costs between $300 and $800 in Ontario.
More complex wills with trusts or business assets can cost $1,000 to $3,000 or more.
Online will services usually charge $50 to $200.
Will kits from stores cost around $20 to $50.
The cost depends on how complex the estate is and what method someone chooses.
Are free will kits legal in Ontario?
Yes, free will kits can be legal in Ontario if they meet all the legal requirements.
The will must be properly signed and witnessed according to Ontario law.
Free kits work best for simple estates.
They may not cover complex situations like blended families or business ownership.
The kit itself does not make the will legal.
Following Ontario's signing and witnessing rules makes it legal.
Can I write my own will and have it notarized in Ontario?
You can write your own will in Ontario, but notarization is not required.
Ontario law requires two adult witnesses who are not beneficiaries to sign the will.
A handwritten will does not need any witnesses if it is entirely in the person's own handwriting and signed by them.
This is called a holographic will.
Notarization does not replace the witness requirements.
The witnesses must watch the person sign the will.
What are the requirements for a will to be valid in Ontario?
The person making the will must be at least 18 years old. They must also be of sound mind.
The will must be in writing. It can be either typed or handwritten.
The person must sign the will in front of two adult witnesses. The witnesses must also sign the will.
Witnesses cannot be beneficiaries or their spouses.
For handwritten wills, no witnesses are needed. The entire will and signature must be in the person's own handwriting.