Many people think a will is something to deal with later in life. In fact, if you own a home or accounts, have children, or hold assets in more than one country, arranging things early saves your family a great deal of trouble. This page explains Ontario wills, powers of attorney and probate in plain language so you can decide what you need.
Why you need a will
Without a will, Ontario law decides who inherits, not you. A legally married spouse first receives a "preferential share" ($350,000 for deaths on or after March 1, 2021), and the rest is divided between the spouse and children in the proportions the law sets out. An unmarried partner does not inherit under these rules and has to look to other claims.
A few common misunderstandings:
- "My estate is small, so I don't need one." A smaller estate without a will can still cause disputes over who handles it and how it is divided.
- "Everything simply goes to my spouse." Not necessarily, especially when there are children, or when one spouse has children from an earlier relationship.
- "I have children, so there won't be a problem." If the children are minors, you still need to plan who cares for them and who manages the money they inherit.
The basic requirements for an Ontario will
- The person making the will generally must be at least 18
- It must be in writing and signed at the end by the person making it
- Two witnesses must be present at the same time, watch the signing, and each sign
- A witness cannot be a beneficiary or a beneficiary's spouse, or that gift may be void (Succession Law Reform Act, s. 12)
A will written entirely in your own handwriting and signed by you can also be valid in Ontario without witnesses, but it often leads to disputes over unclear wording or forgotten assets, so it is not a good first choice. For why downloaded templates cause problems, see Are Online Wills Valid in Ontario?
Documents beyond the will
Powers of attorney
A power of attorney names who acts for you if you cannot make decisions yourself. Ontario has two: a power of attorney for property, which covers money and assets, and a power of attorney for personal care, which covers health care and daily care decisions. A will only takes effect after death. These documents are what cover you while you are alive but unable to act.
Guardians for minor children
If your children are minors, your will can name who would care for them if both parents are gone.
Beneficiary designations
Retirement accounts, tax-free accounts and life insurance can usually name a beneficiary directly, so the money goes to that person outside the will. Joint accounts have their own rules. When these do not match the will, that mismatch is often the source of disputes. See Your Will Isn't the Whole Plan.
After death: probate
Probate means applying to the court for a certificate of appointment of estate trustee, which confirms who has authority to deal with the estate. The type of application differs depending on whether there is a will. Whether it is required depends on what the estate holds and what banks and other institutions ask for.
Applying involves Estate Administration Tax: nothing if the estate is worth $50,000 or less, and $15 for every $1,000 (or part of $1,000) above that. For example, an estate valued at $240,000 pays $2,850. You can estimate it with our probate fee calculator.
Issues that often come up for Chinese families
Assets in China
Our firm advises on Ontario law only. Property and savings in China are usually governed by Chinese inheritance rules and procedures, so you should also consult a lawyer there. We can help you arrange the Ontario side. Whether to make a separate will in each place depends on your assets and advice from lawyers in both places.
A will made in China
Generally, a will can be recognized in Ontario if it complied with the law of the place where it was made, or where the person was domiciled or habitually resident at the time (Succession Law Reform Act, s. 37). Whether and how it can be used depends on the facts.
Children living in different countries
When choosing an estate trustee (executor), consider where the person lives, whether they can handle Ontario matters, and the language they work in. A trustee abroad can make the process much slower.
Language
Wills are drafted in English, but the person signing must understand what they are signing. We explain each provision in Mandarin before you sign.
Fees and timing
Cost and timing depend mainly on whether you need one simple will or also powers of attorney and more complex arrangements, whether there are assets abroad, and whether minor children require a trust. After your initial consultation we explain the fee arrangement in writing, so you know how fees will be charged before work begins.
How to choose a wills lawyer
- Check the licence first. You can search the Law Society of Ontario's lawyer directory.
- Look for easy communication. You need to fully understand what you are signing.
- Ask for the fee arrangement in writing. How fees are charged and likely extra costs should be clear.
- Ask whether they will also review powers of attorney and beneficiary designations. A will alone is often not enough.
How Tang Law can help
Tang Law is a Toronto family and real estate law firm that also handles wills and estates: drafting wills and powers of attorney, estate planning, probate applications and estate administration. We work in English, Mandarin and Shanghainese, with Cantonese assistance available through our staff. You can start with a free 15-minute initial consultation to describe your situation.
Frequently asked questions
Does an Ontario will have to be notarized?
No. Ontario requires a written will signed at the end by the person making it, with two witnesses present at the same time who watch the signing and each sign as well.
What happens if I die without a will?
Ontario law decides who inherits, not you. A legally married spouse first receives a "preferential share" ($350,000 for deaths on or after March 1, 2021), and the rest is divided between the spouse and children as the law sets out. An unmarried partner does not inherit under these rules and has to look to other claims.
Can I write my own handwritten will?
Ontario recognizes a will written entirely in your own handwriting and signed by you, and it does not need witnesses. But handwritten wills often lead to disputes because of unclear wording, forgotten assets or form problems, so they are not a good first choice.
Is probate always required after someone dies?
Not always. It depends on what the estate holds and what banks and other institutions require. If there is real estate or a larger account, a certificate of appointment of estate trustee is usually needed from the court. Accounts with a named beneficiary, or jointly held property, can sometimes pass without it. It depends on the type of asset.
Can I change my will after I make it?
Yes, by making a new will or by adding a codicil. Note that marriage generally revokes a will made before the marriage, with some exceptions, so it is wise to review your will after you marry.
Is a will made in China valid in Ontario?
It may be. Generally, a will can be recognized in Ontario if it met the law of the place where it was made, or where the person was domiciled or habitually resident when making it (Succession Law Reform Act, s. 37). Whether and how it can be used depends on the facts.
Sources
- Ontario Succession Law Reform Act, ss. 4, 12, 37, 45 and related provisions
- Government of Ontario: Estate Administration Tax
- Government of Ontario: Administering estates
This page provides general information about Ontario law as of its publication date and is not legal advice. It does not create a solicitor-client relationship. Our firm advises on Ontario law only; for matters in other jurisdictions, including China, please consult a local lawyer. Outcomes depend on the specific facts; please consult a lawyer about your circumstances.
