November 25, 2025
| Highlights: A valid will in Ontario requires you to be at least 18, of sound mind, acting voluntarily, and signing in front of two qualified witnesses. Dying without a will means the law decides how your estate is inherited. You will have no legal estate representative. Deciding what assets to include and exclude, naming executors, guardians and beneficiaries, are all important considerations when creating a will and an estate plan. Regular updates, secure storage, and informing key people about your will help ensure your wishes are carried out smoothly and without disputes. |
What is a Will?
A will is one of the most important legal documents you can have. It sets out exactly how you want your assets, such as your money, property, and personal belongings, to be distributed when you pass away. In Ontario, a valid will ensures your wishes are respected and gives your family clear direction during a difficult time.
Your “estate” are assets that will flow through your Will. A will is the foundation of any estate plan, helping you decide who will manage your estate and how your assets should be shared.
At Bradshaw & Mancherjee, our experienced lawyers guide you step by step through the will-making process, ensuring your wishes are clearly documented and legally enforceable.
Why You Need a Will
Having a valid will gives you control and peace of mind.
A will has the power to:
Who Can Make a Will in Ontario?
You can make a will if you:
There are some exceptions to the rule.
What Happens If You Die Without a Will?
Dying without a will creates delays, confusion, and even family conflict. According to surveys, more than half of Canadian adults do not have a will, leaving their families unprepared and vulnerable.
Dying without a will is called dying intestate. If this happens in Ontario:
In most cases, someone will need to apply to the court to administer your estate, which can take months. This often causes unnecessary stress for your loved ones at an already painful time.
Elements of a Will
Crafting a will is one of the most important steps you can take to protect your loved ones and ensure your wishes are carried out. A well-drafted will is more than a legal document, it is a plan that provides clarity, reduces stress for your family, and helps avoid unnecessary disputes.
Below, we break down the essential elements of a will and what you need to know when making decisions to carry out your final wishes.
The first step in any will is to clearly identify the testator, who is the person making the will.
To avoid confusion, your will should include your full legal name. This ensures there is no doubt about whose estate is being settled and makes your intentions perfectly clear.
Executor Role & Responsibilities
An executor is also called an estate trustee in Ontario. This is the person responsible for managing your estate after you pass away.
Their responsibilities include:
Executors are also legally entitled to compensation, typically around 5% of the estate’s value, plus a small annual management fee if applicable.
Being an executor is a major responsibility. They must be organized, financially literate, and capable of handling legal and administrative duties. Executors must keep detailed records, communicate with beneficiaries, and follow Ontario estate law closely. They are often involved in dealing with complex tasks like tax filings, asset valuations, and probate applications.
Criteria for Selecting an Executor
When selecting an executor, consider the person’s:
For large or complicated estates, naming a professional executor, such as a lawyer, accountant, or trust company, can provide neutrality, reduce family conflict, and ensure the process is handled correctly.
Having a Backup Executor
It is also important to name at least one backup executor in case your first choice cannot or will not serve. Keep in mind that naming too many executors can cause delays, as they must agree on decisions unless your will specifies otherwise.
Keeping Your Executor Informed
Once you have chosen your executor, it is important to:
Making sure the executor is aware of this information helps them to stay organized and enables them to act quickly and smoothly when the time comes.
When creating a will, one of the most important steps is deciding who will inherit your assets. These individuals or organizations are known as beneficiaries. Being precise about your beneficiaries helps ensure that your estate is distributed exactly as you intended and prevents unnecessary conflict after your passing.
Identifying Beneficiaries
Your beneficiaries can include:
When naming beneficiaries, always include full legal names and their relationship to you. This reduces the risk of confusion or disputes about who you intended to inherit specific assets.
What Happens to a Minor Beneficiary’s Inheritance?
Children often require special consideration when named as beneficiaries. In Ontario, the law sets out strict rules about how a child’s inheritance is managed, depending on the amount involved and whether a will exists.
If There is a Will:
If There is No Will:
Children as Life Insurance Beneficiaries
If a child is named as the beneficiary of a life insurance policy, different rules apply.
Parents may apply for access to these funds through the Minors’ Funds Program if the money is needed for the child’s expenses.
There are different kinds of assets to think about when preparing an estate plan.
Assets included in a Will
Money
Money is often the heart of an estate. You should discuss with your lawyer where your funds are held and how they should be used, you make things much easier for your family & friends. This includes identifying accounts set aside to cover:
Be sure to include all of your bank accounts, such as chequing, savings, and money market accounts.
Real Estate
Real estate is often one of the largest assets in an estate. It could be your home, vacation property, land, or even rental buildings. Your will should clearly state who inherits each property and whether any properties should be sold.
If you have a mortgage on a property, think about how that debt will be managed:
These decisions should be clearly laid out to avoid confusion and to make sure your intentions are carried out.
Investments
Stocks, bonds, and mutual funds that are not part of a registered fund (such as an RRSP, TFSA) and that are in your name alone would flow through your will.
Business Interests
If you own a business, whether it is a large corporation, a partnership, or even a small side business, it is important to make sure you discuss it with the lawyer. You made need 2 Wills (one for probate and one for assets that won’t go through probate). A succession plan for your business can prevent confusion and keep your business running smoothly.
Check your original business documents to see if you already provided instructions about what should happen when you pass away. Some agreements specify that a business interest must go to a spouse or partner, while others require dissolution. Including your wishes in your will ensures that the transition aligns with your estate plan.
Other Assets
Not all assets are financial; some have sentimental value. Jewelry, cars, heirlooms, artwork, or collectibles can hold deep meaning for your loved ones. Your will is the best place to leave these personal items to specific family members or friends.
Assets & Property to Exclude in a Will
Just as important, however, is knowing what not to include. Some assets already have built-in ways of transferring to beneficiaries and don’t need to be repeated in your will. Understanding this can make the estate planning process feel a lot less overwhelming.
Joint Tenancy Property
Property owned in joint tenancy comes with its own rules. Because ownership is joint/shared, your share will usually transfer automatically to the surviving co-owner. That means it does not belong in your will. There are notable exceptions and should be discussed with the lawyer.
Retirement Plans
Registered funds already ask you to name a beneficiary when you open the account. Upon your passing, the funds will go directly to the people you’ve chosen. Any updates should be made directly with your plan administrator—not through your will.
Life Insurance Proceeds
Life insurance works in much the same way as retirement accounts. Since you have already named beneficiaries (and backup beneficiaries) on the policy, those proceeds will pass directly to them. There is no need to duplicate that information in your will.
Residual Clause
A residue clause is a provision in your will that covers all remaining assets after specific gifts have been distributed. It typically uses wording like “the residue of my estate” to describe everything that hasn’t been explicitly assigned.
It is a safety net for your estate that ensures nothing is left out, forgotten, or left for the courts to decide. By including a residue clause, you ensure all assets are distributed according to your wishes, including:
When parents think about making a will, they often focus on how their money and property will be divided. But if you are a parent and have children under 18, one of the most important and often overlooked steps is naming a guardian. Appointing a guardian in your will is such a critical step in protecting your child’s future.
Even if you name a guardian in your will, that appointment is only binding for 90 days. After that, the Courts retain ultimate authority to decide who will be the permanent guardian of your child. The Court’s primary responsibility is to make a decision in the best interests of the child.
Your expressed wishes are very important and carry significant weight. Placing this in a will can help prevent disputes among family members and give your child the best chance of being placed with someone you trust.
Legal Requirements for Creating a Will in Ontario
To make sure your will holds up legally, you must follow specific rules. These requirements protect your wishes, prevent unnecessary disputes, and give your loved ones clarity when it matters most.
Minimum Age Requirement
In Ontario, you must be 18 years or older to make a valid will. The law assumes that by this age, you have the maturity and understanding needed to make decisions about your property and heirs. Even if you are just starting out in the workforce and do not own much yet, having a will ensures that your assets go where you want them to and not where the law decides.
Mental Capacity
A will is only valid if the testator (the person making the will) has mental capacity at the time it is created.
This means:
Voluntary Intentions
A valid will must be made voluntarily. That means no one is allowed to pressure, manipulate, or coerce the testator into making certain decisions.
Proper Signing and Witnessing
This step is where many wills fail if not done correctly. In Ontario:
The testator (the will-maker) and both witnesses must see, hear, and interact in real time during the signing. This prevents disputes later about whether the will was signed voluntarily. For added protection, your witnesses can also sign an Affidavit of Execution, which is a sworn statement confirming that your will was signed properly. This is also used as part of the probate process.
Who CANNOT Be a Witness?
Not everyone is eligible to act as a witness. In fact, the law specifically excludes some people:
It is best to choose neutral witnesses, such as trusted friends, colleagues, or professionals who will not benefit from your estate.
The law firm that you retain will ensure the witness requirements are satisfied.
After Making Your Will
Creating a valid will is the first step in protecting your legacy, but your responsibility does not end there. To ensure your estate plan remains strong and effective, there are a few extra steps you should take beyond creating the will.
Life is constantly changing, and your will needs to be keeping up with these changes. Major life changes often call for updates to your will, such as:
Regular updates keep your will aligned with your current circumstances and wishes. Without them, your estate plan may become outdated or even contested. It is also wise to have a trusted professional, such as an experienced estate lawyer, to review updates with you. This ensures your decisions are made with a sound mind and that your wishes will be upheld if ever questioned.
Your will is more than just a legal document; it is a roadmap for your loved ones when you are no longer here. It is crucial to keep this document safe! Consider storing it in a fireproof safe. The goal is to keep your will secure but also accessible to your executor when it is needed. Misplacing or losing a will can create unnecessary stress for your family during an already difficult time.
A will only works if the right people know about its existence and location. Be sure to:
Conclusion
Creating a will is one of the most important steps you can take to protect your loved ones and secure your legacy. From deciding what assets to include and exclude, to naming guardians and beneficiaries, choosing witnesses, and ensuring your document meets all legal requirements, there are many moving parts that are required for thoughtful estate planning.
At Bradshaw & Mancherjee, we understand that estate planning can feel overwhelming, but you don’t have to navigate it alone. Our experienced team provides clear, practical advice and customized plans tailored to your unique circumstances. Whether you are writing your first will, updating an existing one, or addressing more complex estate planning concerns, we are here to guide you every step of the way.
Let us help you make confident decisions that protect your family and give you peace of mind. Contact our expert estate lawyers at Bradshaw & Mancherjee today to start your journey of safeguarding your future.
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