Everything You Need to Know About a Last Will and Testament in Ontario

Have you ever thought about what would happen to your belongings if you passed away? Who will receive your collection of rare coins? How will your children be provided for? These are valid questions to ask yourself, and estate planning provides answers to them.

Estate planning involves making arrangements for the management and distribution of your estate in the event of your death. A cornerstone of estate planning is creating a legally valid will.

What Is a Last Will and Testament in Ontario?

A last will is a legally-binding document that allows you to control what happens to your estate and dependents after you die. Your will ideally also names an estate executor, who is the person responsible for carrying out the instructions in the will and for settling your estate. This person should be someone you trust to carry out this responsibility, and the duties of the role should be discussed in advanced with the person you select to ensure that they’re prepared.

The will includes provisions detailing care for your dependents, such as young children or adult children with disabilities. A will only comes into effect after you die and it can be changed or updated—in fact, it should!—any time while alive.

You should review your will every few years or whenever there is a significant change in your family situation (e.g. birth, death, marriage, divorce).

If you die without a will in Ontario, the estate is distributed according to the rules of intestacy. Your estate will pass to your surviving spouse, children, parents, or other next of kin in a specific order set out by the law. This is regardless of whether or not you wanted them to inherit your estate.

Creating a last will and testament is the best way to ensure that your estate is distributed according to your wishes. You can also record wishes for pet care, donations to charity, and instructions for funeral arrangements in your will.

What Makes a Will Legal in Ontario?

In order to create a legal will in Ontario, you have to comply with the following requirements:

• You are at least 18 years old when you make the will;

• You are of sound mind and able to understand the nature and effect of a will;

• The will is in writing (either typed or handwritten), exists as a physical copy, and is signed by you and witnessed by two adults;

• The two witnesses must also sign the will;

• The will is dated;

• You can handwrite your will or type it. If you type it, you must also print and sign it.

There are some instances where witnesses are not present, yet a will can still be considered valid. Those wills are known as holographic wills and you can learn more about them here.

Who Are the Parties in a Last Will and Testament?

Parties involved in a will include:

• Testator or Testatrix: This is you - the person who creates the will;

• Executor or personal representative: The executor is the person named in the will to settle the estate. Their role is gathering estate assets, paying debts and taxes, and distributing the estate according to the will;

• Beneficiaries: These are the people who inherit estate assets or otherwise have a claim to the estate;

• Guardians: A legal guardian is a person who has the authority to make decisions on behalf of a minor. In estate planning, a guardian is named in the will to care for any minor children in the event of both parents become deceased. The same goes for adult children who are incapacitated and cannot care for themselves;

• Pet caretaker: You can name someone in your will to care for any pets you own.

What Information Is Included in a Last Will and Testament?

At a minimum, your will should include the following information:

• Your full, legal name and address.

• The names of your spouse, children, and any other dependents.

• The name of your executor and any alternate executors.

• Any gifts or bequests you wish to make.

• Who will receive any property or other assets you want to leave to other people.

• The name of the guardian for minor children.

• Special instructions regarding the care of any pets you own.

• The date the will was created and signed.

• Your signature and that of your witnesses.

When Do You Need a Last Will and Testament?

While there is no legal requirement to have a will, it is recommended for everyone over the age of 18 who owns property or has dependents. You should create a will if any of the following applies to you:

• You are married or in a common-law relationship.

• You have children, including adopted children, stepchildren, or foster children.

• You are separated, but not divorced, and you want to leave your estate to someone other than your spouse.

• You want to name a guardian for your children.

• You want to leave estate assets to someone other than your immediate family, such as friends or charities.

• You want to make provisions for the care of pets.

• You own property, including a home, investments, or vehicles.

• You have a business.

How to Make Your Will in Ontario

Creating a will does not have to be complicated. Here’s what you should include:

1. Correct Titling and Proclamation: The will must have the title "Last Living Will and Testament of ________" at the top. The date is written out in the long hand below the title. Also, include your full legal name and address.

2. Appointment of Executor: The will should name one executor and may also name alternates if the original executor is unable or unwilling to serve. The executor is the person responsible for carrying out the estate according to the will. You should list their full name and address.

3. Distribute Your Assets: The will should list all estate assets and how you want your estate distributed upon your death. This includes gifts or bequests to individuals, charities, or organizations. You can also specify in the will how you want your debts and taxes paid.

It’s important that you specify that you’re giving your executor the authority to complete these duties in your name.

4. Choose a Guardian for Minor Children: If you have minor children, carefully consider who you want to care for them in the event of your death. Remember, the guardian is responsible for your children's physical and legal care.

5. Residual Clause: A residual clause specifies who inherits the rest of the deceased's assets once all debts, taxes, expenses, bequests, and other distributions are made. This clause is important because it covers anything you may have overlooked or that may have been added to your estate after you wrote the will.

6. Sign and Date the Will: The will is signed and dated by you in the presence of two witnesses. The witnesses are over 18-years-old and not beneficiaries of the will.

Need to learn more about writing a valid will in Ontario? read more about it in our in-depth blog post here

Virtual Witnessing

In response to the COVID-19 pandemic, the Ontario government has allowed for the virtual witnessing of wills. This means that a will can be witnessed via video conference, as long as the following conditions are met:

• The testator must declare that the will being signed is their will in the presence of witnesses.

• At least one of the witnesses is a lawyer licensed by the Law Society of Ontario.

• The testator and witnesses are all present at the same time.

• The testator and witnesses are all able to see, hear, and understand each other throughout the will-signing process.

• The testator and the witnesses must all sign a physical copy of the will. The three signed copies are then stored together and constitute the complete and finalized will.

Does a Last Will and Testament Need To Be Notarized?

No, a will does not need to be notarized for legality in Ontario. A will only requires dates and signatures by the testator in the presence of two witnesses, as well as their respective signatures.

We Can Help!

At ClearEstate, we help you write a last will and testament that is legally binding in Ontario without the need for a lawyer or notary. If you’re finding yourself in need of help or guidance in drafting your will, we have just created a new totally free valid will builder. Check it out!