How to Create a Legal Will in Ontario
Thinking about death and dying can be a difficult and emotional process for many. This fact, as well as cost and time, are key reasons why half of Ontarians do not have a legal will in place. And this number increases to 89% for adults under the age of 35. Having a clear plan for your property, assets and who will take care of your dependants—including children or pets—is vital. This planning will prevent extra stress and costs for your loved ones and make sure that your wishes are carried out as you intend.
Luckily, writing a legal will can be quick, affordable and significantly less complex than it once was. Here’s some information to help you understand what is involved in a will, what makes a will legal in Ontario and the different drafting options available, depending on your specific situation.
What is a Will?
A will is a legal document that names who will inherit your property and assets. These individuals are also called your beneficiaries. If you have minor children, a will establishes their legal guardian(s) in case you and any spouse pass away.
This document also nominates an executor to settle your estate according to the terms of your will. They are in charge of carrying out your wishes, distributing your assets, paying any debts or taxes and corresponding with beneficiaries. This can be a family member, friend, a corporate executor or trust company.
What Isn’t Included in a Will?
Although often seen as interchangeable, a will isn’t the same thing as an advanced care plan. Also called a living will, advance directives are entirely separate legal documents which provide instructions for your medical care if you are no longer able to communicate your own wishes. This can include directions on life-prolonging health care treatments, palliative care measures, who will look after your kids if you’re incapacitated, and naming a power of attorney to make financial and health decisions on your behalf. Advance Care Planning kits guide you through a series of end-of-life situations and the possible options to help you make these difficult decisions.
Account numbers, passwords, or anything else that may make it easier for your executor or family members to make arrangements after your passing, are also not a part of your legal will. However, many people create a separate document that outlines this information and often store it in the same way/place as their will.
When Should I Draft a Will?
All adults should have a will, even if you feel like you don’t have significant assets. There are certain life events, resources and circumstances that can make having a will particularly important. These may include:
- Recent marriage or common-law relationship
- Divorce or separation
- Children, grandchildren, pets or other dependents
- Home or property ownership
- Real estate in other provinces/countries
- Business ownership
- Valuable art or jewellery
- Complex family dynamics that could lead to conflict
If you already have a will drafted and recently experienced a major life milestone, it’s important to revisit and update your document to make sure it reflects any changed assets and wishes.
What Happens if I Pass Away and Don’t Have a Will?
It is usually assumed that if you die without a will in place, your estate will go to your spouse, children or next-of-kin. However, this may not be the case in all circumstances. For example, in Ontario, a common-law partner is not considered your beneficiary and isn’t automatically entitled to any of your assets. If you want your partner to be taken care of, you need to outline this in a legal will.
Also, if you have dependent children, without a clear guardianship plan in place, there can be unnecessary court involvement and added disruption to their life. This process also costs money and takes time which can affect the value of your estate and keep assets away from your loved ones for a longer period of time.
Do I Need a Lawyer?
You do not require legal counsel to write your will. However, experts agree that there are circumstances where hiring the services of an estate lawyer is highly advised. These may include:
- Dual citizenship
- Complex estate (e.g., business owner, multiple properties)
- Complicated family dynamics (e.g., blended family with previous marriages, children with multiple partners)
- Beneficiary with a physical or mental disability
The online will kits that are now available are designed for more simple, straightforward situations and can’t always account for these complexities. It is also recommended that if you hire a lawyer, they should specifically focus on wills and estate planning.
Can I Write my Own Will?
In all provinces except for British Columbia and Prince Edward Island, a handwritten will is considered legally binding. To be verifiable, it must be on paper, in your own handwriting and include your signature. Also called a holograph will, this document should include your beneficiaries, executor, guardian(s) if you have minor children, and any specific gifts.
Holograph wills are often used as a temporary solution before travel, in a sudden emergency or if you’re unable to update your official document in a timely way. You do not need a witness, but holograph wills can create legal issues if no one can confirm that you were of ‘sound mind’ when you created the document.
Are Online or Pre-Printed Will Kits a Good Option?
Although a handwritten will is considered legal in most provinces, people usually prefer at least some guidance around what should be included and the wording to use. In order for a will developed using an online or pre-printed kit to be considered a legal document in Ontario, the following criteria must to be met:
- Paper document with your original signature—digital copies and/or signatures are not acceptable. Wills developed with online kits must be printed out and signed by hand.
- Signed in the presence of two witnesses who also sign the document themselves. Witnesses should be third-party representatives and not family members named in your will.
- The person who drafted the will must be an adult and of sound mind when the document is completed. This means that you understand what a will is and its implications, your property and its value, and the impact your will has on your dependents.
How Much Does a Will Cost?
The cost of creating a will varies significantly depending on the method you choose and where you live. These totals are estimates based on averages:
- Lawyer: Working with an estate lawyer usually costs a minimum of $800 and can increase to several thousand dollars if you have a more complicated estate.
- Online Will Template: There are multiple sites now available in Canada. Costs range from $40-$150 for a standard, basic will. Some of these services also allow you to make changes to your will at any time without added costs. You should note that after any changes are made, you have to print, sign and have witnesses present to sign again.
Where Should I Store My Will?
Once completed, your will should be kept in a safe and secure location. This can be in the law office where you drafted it, a safety deposit box or a safe at your residence.
Let your family members and executor know where your will is stored so they can access it when necessary. You can also register and store your will on the online will database Canadian Will Registry. Some online will services and lawyers will cover the fee for the registry.
Having a legal will is essential for your family’s future and to make sure that they are cared for and protected. Understanding the legal requirements for wills in Ontario and learning more about the ways to draft a will can help you start the process or keep your current documents updated.
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