[Kyra Kim] Think You Don’t Need a Will? Think Again.

Why does one need a will in Ontario?

A will is not legally required in Ontario, but it allows you to control who receives your assets and manage how your property is distributed, who administers your estate, and how your affairs will be handled after your death. If you pass without a will, the distribution of your estate is generally governed by Ontario’ Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), which may not reflect your personal wishes.

Why a will matters in Ontario?

1. It allows you to choose who inherits your estate:

If you die intestate (without a will), your estate is divided under the SLRA rather than by your instructions. The legislation sets out a default distribution scheme based on spouses, issues and next of kin, regardless of your personal relationship or intentions. 

2. It allows you to appoint the person who will administer the estate:

A will allows you to appoint the Estate Trustee (also known as the Executor) of your choice. The Estate Trustee is the person responsible for administering your estate after death, including gathering assets, paying debts and taxes, dealing with financial institutions, and distributing the estate to beneficiaries. 

Without a will, someone must apply to the court for authority to administer the estate, which can result in significant delays, uncertainty, and potential disputes over who should act. By having a will, you can choose the person you trust to manage your affairs and help make the estate administration process smoother and more efficient.

3. It helps provide for loved ones and different family situations:

Ontario’s intestacy rules do not capture every family situation and arrangement. For example, a common-law spouse does not automatically inherit under the SLRA. A will is especially important if you want to provide for:

• A common-law partner;
• Stepchildren;
• close friend or caregiver;
• charities;
• or anyone outside the statutory family classes recognized under the SLRA

4. It can reduce conflict and delay: 

A properly prepared will provide clear evidence of your intentions regarding the distribution of your estate. This can help reduce uncertainty and assist financial institutions, beneficiaries, and the court in administering the estate more efficiently. It can also help minimize family conflicts, avoid disputes among relatives, and make the estate administration process smoother.

5. It allows you to plan for minor children:

If you have young children, a will allows you to express your wishes regarding who you would want to act as their legal guardian if something ever happens to you. While the court ultimately determines guardianship based on the child’s best interests, the wishes set out in your will are an important consideration. 

A will may also include provisions regarding how a child’s inheritance should be managed, including appointing a trustee to oversee funds on behalf of the child until a specified age.

6. It can assist with tax and estate planning 

A properly drafted will may help organize your estate more efficiently and allow for certain estate planning strategies. For example, in some circumstances, Ontario estate planning may involve using multiple wills for certain assets that can be administered without probate (the court process of validating a will and confirming the executor’s authority to administer the estate), including private company shares and other private assets. Ontario courts have recognized the use of multiple wills in appropriate circumstances where the estate structure and documents are properly prepared.

7. It can simplify the probate process

A clear and properly drafted will can make it easier for financial institutions, the court, and beneficiaries to understand your intentions and administer the estate.

8. It helps address blended family situations

Every family is different, and Ontario’s intestacy rules may not always reflect a person’s individual family circumstances or intentions. A will allows you to set out how you would like your estate to be distributed and can help provide clarity where there are new partners, children from previous relationships, stepchildren, or other important individuals you wish to include in your estate plan.

9. It allows you to leave specific gifts 

A will allows you to leave specific gifts or assets to particular individuals or organizations. For example, you may wish to leave jewelry, sentimental family items, personal belongings, real estate, or charitable gifts to designated beneficiaries.

10. It provides peace of mind

Having a will in place can give both you and your family greater peace of mind knowing that your affairs have been organized and your wishes clearly documented.

While every person’s circumstances are different, having a properly prepared will is an important part of estate planning in Ontario. Reviewing your estate plan regularly and obtaining legal advice where appropriate can help ensure that your wishes are clearly documented and your loved ones are better supported in the future. Realty Care Law LLP can assist individuals and families with wills, powers of attorney, and estate planning tailored to their personal and family circumstances.