What do I need to think about when making a will? | Steps to Justice | Your guide to law in Ontario

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Question

What do I need to think about when making a will?

Next steps

1. Decide how you want to make your will

2. Choose an estate trustee

3. Make lists of who and what to include in your will

4. Decide who gets what

5. Think about your children

Learn more about this topic

Preparing a will

The Canadian Bar Association (CBA)

Powers of Attorney and Wills

Holograph Wills – Testators Beware

Advocacy Centre for The Elderly (ACE)

Wills, Estates and Trusts

Ministry of the Attorney General

Estate planning, wills and dealing with death

Government of Canada

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What do I need to think about when making a will?

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Reviewed:

October 31, 2019

Answer

Once you decide to make a will, think about:

your estate trustee, who is the person you trust to carry out the directions in your will
your beneficiaries, who are the people and organizations you want to leave your property to
who will care for your children under the age of 18
who will manage the property you left for your children under the age of 18
who you want to give specific property, like jewellery or a car, that may be valuable or have sentimental value to you
what you want to happen at your funeral

If you have a spouse, you cannot make one will for both of you. You must each make your own will.

Who can make a will

To make a will you must be mentally capable. This means that you understand:

why you're making a will
how much property you have
which of your dependants should be included as beneficiaries

Your will may be challenged if you make it when you're not mentally capable or if you don't include dependants. A dependant is a person you were supporting financially before you died or a person the law says you must support.

You must also be at least 18 years old to make a will. But you can be younger than 18, if you're:

legally married,
a member of the Canadian armed forces, or
a sailor

Get legal help

It's possible to make a will yourself. But it's usually a good idea to talk to an estates lawyer before making one. A lawyer can make sure you follow all the rules for making a will and help you make an estate plan than meets your needs.

For example, a lawyer can tell you how to reduce probate fees, if there are any dependants you should include in your will, and what happens if a beneficiary dies before you do.

If you have a low income, you may be able to get help from the Wills Clinic at The 519 or the Queen's University Elder Law Clinic. You can also call your local community legal clinic to see if they help with wills. If you have a simple estate, there are services such as Axess Law, that provide legal services at lower rates.

If you have a large or complicated estate, it might be a good idea to talk to a financial advisor as well an estates lawyer.

Question

What do I need to think about when making a will?

Next steps

1. Decide how you want to make your will

2. Choose an estate trustee

3. Make lists of who and what to include in your will

4. Decide who gets what

5. Think about your children

1. Decide how you want to make your will

There are 3 ways to make a will.

Write a holograph will

A holograph will is one you write completely in your own handwriting. If you make a holograph will, make sure it states:

your full name
that it is your "last will and testament"
who you appoint as your estate trustee
what your wishes are

You don't need any witnesses. But you must sign it at the very end. And it's a good idea to put a date on it.

There is no cost to make a holograph will. But if it's not done correctly, it will not be valid. For example, it can't be typed, or part handwritten and part typed, or have any parts that are already printed like a form will.

Use a form will kit

A form will is one you make using a kit that you buy online or from a store. Make sure the kit is based on the law of Ontario. Will kits usually have blank parts that you have to fill in.

If you use a form will kit, make sure you follow all the rules for making a formal will. This means:

The will must be dated.
You must sign the will in front of 2 witnesses.
Each witness must also sign the will in front of you and the other witness.
One of the witnesses should sign an affidavit of execution that confirms that you signed the will in front of both of the witnesses, who also signed the will.

The price of a form will kit ranges from $20 to $50 and sometimes much more. But using a will kit does not guarantee that your will is done correctly.

Hire a lawyer to make a formal will

A formal will is one that follows all the rules for making a will. This means:

The will must be dated.
You must sign the will in front of 2 witnesses who are not named in the will as beneficiaries.
Each witness must also sign the will in front of you and the other witness.
One of the witnesses should sign an affidavit of execution that confirms that you signed the will in front of both of the witnesses, who also signed the will.

Estate lawyers usually charge between $500 and $1,000 to make a basic will, power of attorney for property, and power of attorney for personal care. Their fee depends on how complicated your situation is.

Your situation can be more complicated if you:

own property and assets in more than one country
have a business
have a dependant who needs long-term medical care or who is receiving government benefits
have children from a previous marriage
are living with a common-law partner and have a spouse you have not yet divorced

If you have a large or complicated estate, it's a good idea to talk to a financial advisor as well as an estates lawyer.

Reviewed:

October 2019

2. Choose an estate trustee

The person who deals with your estate after you die is called an estate trustee. They are also called executors, estate representatives, personal representatives, estate administrators, or liquidators.

Being an estate trustee is a big responsibility and can sometimes last for years.

What an estate trustee does

Your estate trustee:

arranges your funeral and burial or cremation
stops payments that end on death, like Canada Pension Plan (CPP), Old Age Security (OAS), social assistance, and disability insurance payments
cancels your social insurance, driver's licence, and OHIP card
finds and values all assets in your estate
applies for probate if needed
pays any taxes and debts that you owe
files your final income tax return
distributes your estate based on what your will says

Choosing an estate trustee

Here are some things to think about:

Choose an adult you trust and who's likely to live longer than you.
Choose someone who is organized, responsible, and knows about finances.
Choose someone who lives in Ontario. It can be easier for someone who lives close by to deal with your estate. Also, if your estate trustee does not live in Canada, they might have to pay a bond. A bond is the estate trustee's promise to pay an amount of money if they don't do their job ethically and honestly.
Think about choosing a professional, such as a lawyer, accountant, or trust company, if you have a large or complicated estate.

Many people choose their spouse, family member, or friend to be their estate trustee. Talk to the person to make sure that they agree to be your estate trustee before naming them in your will.

Also think about choosing someone to be an alternate estate trustee, in case your first choice dies or is not able or willing to do the job after you die

You can name more than one person to act as estate trustee. If you do, it's a good idea to say how decisions about your estate should be made. For example, say if you want all the estate trustees to agree on every decision, or which one can decide if they don't agree. If the will does not say anything, then all estate trustees must agree before any decision is made.

Paying your estate trustee

Think about whether your estate trustee will be paid. Even if your estate trustee is a family member or friend who says they don't want to be paid, all estate trustees are legally allowed to charge a fee. If the amount is not in the will, the law says the fee is an amount that's "fair and reasonable".

The amount depends on what your estate is worth and how much work your estate trustee has to do. In general, this fee is:

about 5% of the estate’s value, and
sometimes an additional care and management fee of 2/5 of 1% of the average annual value of the assets administered.

Information for your estate trustee

Ontario doesn't have a central database of wills and you don't have to file your will with the court or government. So make sure your will is kept in a safe place. This could be in a desk at home, in a safety deposit box at your bank, or with your lawyer. Make sure your estate trustee knows where to find your will.

It’s also a good idea to tell your estate trustee where they can find a list of your property, including bank accounts, investments, and insurance policies, and passwords for things like online banking and social media accounts.

Reviewed:

October 2019

3. Make lists of who and what to include in your will

Before you write your will, it's a good idea to make a list of who you want to include in your will, and a list of your assets and debts.

List beneficiaries

Make a list of any family members, friends, and other people you would like to leave something to. Include their legal name and address if possible. For example, you might want to leave property to:

a married or common-law spouse
your children
other family members like a grandchild, niece, or nephew
non-relatives like a friend or neighbour
organizations such as charities

The people and organizations you leave your property to are called your beneficiaries.

You also need to think about what you'd like to happen if a beneficiary dies before you do. You have to decide if the property you left that person goes to their children, to someone else, or back into your estate.

Who you should leave something to

If possible, you should leave enough to financially support your dependants. A dependant is a person you were supporting financially before you died or a person the law says you must support.

A dependant can be your married or common-law partner, ex-spouse, child, stepchild, grandchild, parent, grandparent, brother, or sister.

If you don't leave enough for your dependants, they can go to court and make a dependant support claim against your estate.

List your assets and debts

Make a list of all your property, for example:

real property such as cash or money in bank accounts
investments such as registered retirement savings plans (RRSPs) or tax-free savings accounts (TFSA)
life insurance policies
personal property such as:
- cars or trucks
- clothing
- jewellery
- all collections, for example, coin, cards, and art work
- furniture and other household items
online assets such as PayPal, eBay, and loyalty reward programs like Aeroplan miles
pets

Your debts include things like income taxes you owe, mortgages, lines of credit, credit card payments, and car loans. If you rent, your estate trustee will need to know how to contact your landlord, when your rent is due, and whether you paid a deposit for your last month's rent.

Pets

The law says that pets and other animals are personal property.

Your will can tell your estate trustee to sell your pet. Money from selling the pet becomes part of your estate.

Or, you might give your pet to someone in your will. Some people also leave that person something more to thank them or to help with the expenses of taking care of the pet. It's a good idea to ask the person if they're willing to care for your pet before you put this in your will.

Reviewed:

October 2019

4. Decide who gets what

Before your beneficiaries can get anything, your funeral expenses, taxes, and debts have to be paid. Your debts include things like income taxes you owe, mortgages, lines of credit, credit card payments, and car loans. In some cases, this might mean your beneficiaries get less than what you planned or even nothing.

The most common ways to give property in a will are as:

a specific bequest
a legacy
part of the residue

Specific bequests and legacies

A specific bequest is when you leave a beneficiary a particular item, such as a car, piece of jewellery, or a specific bank account. A legacy is when you leave a beneficiary a specific amount of money.

After paying your funeral expenses, taxes and debts, specific bequests are given out first, followed by legacies.

Residue

The residue is the part of your estate that's left after funeral expenses, taxes, debts, specific bequests, and legacies are paid, as well as your estate trustee's fees. This can include:

property that was not left to any beneficiary
specific bequests and legacies that were not given to a beneficiary because the beneficiary died before you

You can leave the whole residue to one person or you can divide it between 2 or more people.

Other ways to deal with property

Making a will is not the only way to decide what happens to your property. For example, you can also:

give gifts to people and organizations while you're alive
have a designated beneficiary on investments such as a life insurance policy, benefits plan, and registered plans such as a registered retirement savings plan (RRSP) or tax-free savings account (TFSA)
own property with someone else jointly

These other ways of dealing with your property to help reduce the estate administration tax, also called probate fees, that is paid to the Ontario government. The less property you have in your estate when you die, the lower your probate fees.

Reviewed:

October 2019

5. Think about your children

Think about who will care for your children and the property you leave them after you die.

Talk to a lawyer about the differences between custody, trustee, and guardian of property, and how best to make plans for your children.

You can name the same person or different people to care for your children and their property. It's a good idea to ask the person and make sure they agree before naming them in your will. You can also talk to the person about how you would like your children to be raised and how you would like the money to be used for your children's benefit.

Minor children

Minor children are those who are younger than 18.

Custody

In most cases, the other parent will get custody of your minor children when you die. But, if no one else has custody, making a will allows you to name someone you trust to take care of your children for up to 90 days after you die.

If that person wants to continue to look after your children, they have to go to court and ask for custody before the 90 days have passed.

Trustee

You might want to create a trust for your children that puts conditions on how and when they get the property you leave them when you die. If you create a trust, you must also name someone to be a trustee who is responsible for managing the trust according to your instructions.

For example, you can create a trust that gives your minor children your property gradually over time. And it can include instructions for paying for things like school and extracurricular activities.

If you feel your adult children are not financially responsible, you can also use a trust to give them your property gradually over time or at an age when you think they will be responsible enough to use it well.

Guardian of property

In some cases, you might be able to name a guardian of property. A guardian of property controls, and is responsible for the property your children get for up to 90 days after you die. They must use the property for the benefit of your children, for example by paying for their schooling.

Child with a disability

If you have an adult child with special needs who is receiving government benefits or a younger child who may need government benefits after they turn 18, those benefits may be taken away if you leave them property in your will and didn't set up a Henson trust. If done correctly, a Henson trust allows your child to get the property you leave them and to continue to get government benefits.

Reviewed:

October 2019

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