Ontario Will Guide: How to Make a Will Legally & Effectively

Creating a will is one of the most important steps you can take to protect your loved ones and ensure your final wishes are carried out. But the process of writing a will in Ontario can be confusing, with specific legal requirements and probate laws to navigate. In this comprehensive guide, we'll walk you through everything you need to know to make a legally valid and effective will in Ontario.

• Introduction
• Legal Requirements for a Valid Will in Ontario
• Choosing an Executor and Beneficiaries
• Deciding How to Distribute Your Assets
• The Process of Writing Your Will
• Making Changes to Your Will
• Understanding Probate in Ontario
• FAQs

Introduction

As an estate planning lawyer in Ontario, I know firsthand how important it is to have a legally valid and up-to-date will. A will ensures that your final wishes are carried out and protects your loved ones from the stress and complications that can arise without one. But the process of creating a will in Ontario can be daunting, with specific legal requirements and complex probate laws to navigate.

That's why I've put together this comprehensive guide to help you understand everything you need to know about making a will in Ontario. Whether you're just starting to think about your estate planning or you're ready to get your will in order, this guide will walk you through the process step-by-step and answer all your questions.

So, let's dive in and make sure your will is legally valid and effectively reflects your wishes.

Legal Requirements for a Valid Will in Ontario

The first step in creating a will in Ontario is understanding the legal requirements for a valid will. Here's what you need to know:

Age and Mental Capacity: To create a will in Ontario, you must be at least 18 years old and have the mental capacity to understand the nature and effect of making a will. This means you need to be of sound mind and able to make decisions about your assets and how you want them distributed.

Writing and Signing: Your will must be in writing, either typed or handwritten. It must be signed at the end by you, the testator, in the presence of two adult witnesses who also sign the will. The witnesses cannot be named as beneficiaries in the will.

Revocation and Alterations: Any changes or alterations to your will must be made in writing, either by creating a new will or adding a codicil (an amendment) that is also signed and witnessed. Verbal changes or handwritten notes in the margins of your will are not legally valid.

The key is to make sure your will meets all the legal requirements to ensure it is legally binding and your wishes will be carried out.

Choosing an Executor and Beneficiaries

One of the most important decisions you'll make when creating your will is choosing an executor. The executor is the person responsible for carrying out the instructions in your will and managing your estate after you pass away.

When selecting an executor, consider someone you trust implicitly, such as a family member or close friend. They should be organized, responsible, and able to handle the administrative and financial tasks involved. Many people also choose a professional executor, such as a lawyer or trust company, to provide expert guidance and ensure everything is handled properly.

Next, you'll need to decide who you want to name as beneficiaries - the people or organizations who will receive your assets and property. This can include your spouse, children, other family members, friends, charities, or any combination. Be sure to carefully consider how you want your assets distributed and communicate your wishes clearly in the will.

Remember, you can always update your will if your circumstances or relationships change down the road.

Deciding How to Distribute Your Assets

Once you've chosen your executor and beneficiaries, it's time to decide how you want to distribute your assets. This can be one of the most complex and emotionally charged parts of creating a will, but it's crucial to ensure your final wishes are clear and legally enforceable.

Start by making a comprehensive list of all your assets, including real estate, investments, bank accounts, personal possessions, and any debts or liabilities. Then, consider how you want each asset to be handled - whether you want to leave it to a specific beneficiary, divide it among multiple people, or have it sold and the proceeds distributed.

You'll also need to think about any special instructions or conditions you want to include, such as setting up a trust for a minor child or grandchild, or specifying how certain heirlooms or sentimental items should be distributed.

The key is to be as clear and specific as possible to avoid any confusion or disputes after you're gone.

The Process of Writing Your Will

Now that you've laid the groundwork, it's time to actually write your will. While you can technically create a DIY will in Ontario, I always recommend working with an experienced estate planning lawyer to ensure it's legally valid and effectively reflects your wishes.

Your lawyer will guide you through the process, which typically involves the following steps:

1. Discussing your goals, assets, and family situation to understand your unique needs
2. Drafting the will based on your instructions and the legal requirements
3. Reviewing the draft will with you to make any necessary changes
4. Arranging for you to sign the will in the presence of two adult witnesses
5. Providing you with a copy of the signed will for your records

Once your will is signed and witnessed, it's considered a legally valid document. Your lawyer will also typically offer to store the original copy in a secure location, which can be helpful for your loved ones when the time comes.

Making Changes to Your Will

Life is full of changes, and your will should evolve along with your circumstances. Whether you've experienced a major life event like a marriage, divorce, or the birth of a child, or you simply want to update your wishes, it's important to know how to make changes to your will in Ontario.

The easiest way to make changes is to create a new will that completely replaces the old one. This is called a "revocation" - your new will expressly states that it revokes all previous wills and codicils.

Alternatively, you can add a codicil, which is a legal amendment to your existing will. A codicil must be signed and witnessed in the same way as your original will. Keep in mind that codicils can get complicated, especially if you make multiple changes over time, so a new will is often the cleaner and more straightforward option.

Whichever route you choose, it's crucial to work with your lawyer to ensure your changes are legally valid and properly executed.

Understanding Probate in Ontario

The final step in the will-making process is understanding probate in Ontario. Probate is the legal process of validating your will and appointing your executor to manage your estate after you pass away.

In Ontario, your executor will need to apply for probate with the court in order to access and distribute your assets according to your will. This involves submitting the original signed will, along with other required documents, and paying probate fees.

The probate process can take several months to complete, and it's important to note that your will and the details of your estate become public record during this time. That's why it's crucial to work with an experienced estate planning lawyer who can guide you through the probate process and ensure it's handled smoothly and efficiently.

Remember, a properly drafted and executed will can help your loved ones avoid the stress and complications of the probate process.

FAQs

Do I need a lawyer to create a will in Ontario?

While it's technically possible to create a DIY will in Ontario, I always recommend working with an experienced estate planning lawyer. They can ensure your will meets all the legal requirements, help you navigate complex issues like asset distribution and executor selection, and guide you through the probate process. Having a lawyer draft your will can also help avoid potential disputes or complications down the road.

How often should I update my will?

There's no set rule for how often you should update your will, but it's generally a good idea to review it every few years or anytime you experience a major life change, such as a marriage, divorce, the birth of a child, or a significant change in your assets or financial situation. Your lawyer can help you determine the right time to make updates and ensure your will stays current.

What happens if I die without a will in Ontario?

If you die without a valid will in Ontario, it's known as dying "intestate." In this case, the province's intestacy laws will determine how your assets are distributed, which may not align with your wishes. Your estate will also go through a more complicated probate process, and your loved ones may face additional stress and complications. That's why having a legally valid will is so important.

Can I name a minor child as a beneficiary in my will?

Yes, you can name a minor child as a beneficiary in your will. However, the child will not be able to directly receive or manage the inheritance until they reach the age of majority (18 in Ontario). Instead, the assets would be held in trust and managed by the executor or a designated trustee until the child is old enough.

What if I want to disinherit someone?

If you want to specifically exclude someone from inheriting from your estate, you'll need to clearly state that in your will. Simply not mentioning them is not enough - you should name them and explicitly state that you are intentionally disinheriting them. This can help prevent potential challenges to your will down the road.