Wills and Estates in Ontario: What to Have in Place — and What Happens If You Don't

People tend to equate estate planning with “making a will,” but a will only speaks after death. A complete plan usually has three parts: a will that says who inherits and who administers your estate, a Power of Attorney for Property that lets someone manage your finances if you cannot, and a Power of Attorney for Personal Care that lets someone make health and care decisions on your behalf.

The two powers of attorney matter while you are alive. If you lose capacity without them in place, your family may have to apply to have someone appointed to act for you — a slower, more expensive, and more public process than simply having signed the documents in advance.

Ontario's Succession Law Reform Act sets out the formalities. The most common form is a will that is in writing, signed at its end by the person making it, with that signature made or acknowledged in front of two witnesses who are present at the same time and who then sign as well. A witness — or their spouse — generally should not be a beneficiary, or that gift can be void.

There is also the holograph will: one written entirely in the maker's own handwriting and signed, with no witnesses required. It is valid, but homemade wills are a frequent source of disputes because they are easy to get wrong — ambiguous wording, missing assets, or an unclear executor can cost an estate far more than a properly drafted will would have.

Dying without a will is called dying “intestate,” and Ontario's intestacy rules then decide who inherits — regardless of what you would have wanted. A spouse is entitled to a preferential share off the top of the estate (set by regulation, currently $350,000 for deaths on or after March 1, 2021), with the remainder divided between the spouse and any children according to a formula.

Several things people assume simply aren't true under intestacy. A common-law partner does not inherit automatically the way a married spouse does. You cannot direct gifts to friends, stepchildren, or charities. And the court, not you, effectively decides who administers the estate. Intestacy is a default, not a plan — and it rarely matches what the person would have chosen.

Powers of attorney are governed by Ontario's Substitute Decisions Act. A Power of Attorney for Property authorizes someone to manage your finances — banking, bills, property — and can be drafted to take effect immediately or only on incapacity. A Power of Attorney for Personal Care authorizes someone to make decisions about your health care, housing, and personal needs if you become unable to make them yourself.

Capacity is central to both: you must understand what you are signing at the time you sign it, which is one more reason not to leave these documents until a health crisis is already underway. Choosing the right attorney — someone trustworthy, available, and capable of the role — matters as much as having the document at all.

Ontario's estate law has shifted in ways that surprise even people who made a will years ago. Marriage no longer automatically revokes an existing will, as it once did — a change that reversed a long-standing rule. Separation now cuts the other way: a separated spouse can be treated, for the purposes of a will and intestacy, as having died before you, so they no longer inherit simply because the divorce was not finalized.

The courts also gained a “validation” power: a document that doesn't meet every formal requirement can, in some cases, still be recognized if a court is satisfied it sets out the person's true testamentary intentions. That is a safety valve, not a substitute for doing it properly — relying on it means litigation. If your will or powers of attorney predate these changes, they are worth a review.

When someone dies, the person named as estate trustee (executor) often has to apply to the court for a Certificate of Appointment of Estate Trustee — what most people call probate — to prove their authority to deal with the assets. Not every estate requires it; whether it is needed often depends on the assets and what the institutions holding them demand.

Where probate applies, Ontario charges an Estate Administration Tax based on the value of the estate, with the first portion exempt. The trustee also has real duties: to identify and protect the assets, pay valid debts and taxes, keep proper accounts, and distribute what remains correctly. A trustee who gets this wrong can be personally liable, which is why many choose to get guidance rather than navigate it alone.

The most frequent are the simplest: having no will at all, or having one so old it predates a marriage, a divorce, a new child, or a major change in assets. Close behind are homemade wills with ambiguous wording, naming an executor who is unwilling or unable to serve, and having a will but no powers of attorney — leaving the living-incapacity gap wide open.

None of these require a complicated estate to matter. A clear, current will and valid powers of attorney spare the people you care about avoidable cost, delay, and conflict at the worst possible time. That is the entire point of putting them in place.