Estate Planning

If you have any assets, dependents, or specific wishes about how your estate should be distributed, you need a will. Without a valid will, Ontario's intestacy laws determine who inherits your estate, which may not align with your wishes. A will also allows you to appoint an executor and guardians for minor children.

If you die without a will (intestate), the Succession Law Reform Act determines how your estate is distributed. Your spouse receives a preferential share (currently $350,000 as of 2022) plus a portion of the remainder depending on how many children you have. If you have one child, your spouse and child split the remainder equally. If you have multiple children, your spouse receives one-third and your children share the remaining two-thirds. If you have no spouse or children, your estate passes to your parents, then siblings, then nieces and nephews, and so on. This statutory scheme may not reflect your wishes, and without a named executor, the court must appoint an estate trustee, causing delay and expense.

Prior to January 1, 2022, marriage automatically revoked any will made before the marriage. This rule has been repealed. However, an existing will likely does not provide for your new spouse, which could result in your spouse making a dependant support claim against your estate or electing against the will under the Family Law Act. You should update your will after marriage to ensure your spouse is appropriately provided for and your wishes are clearly documented.

Yes, significantly. Under the Succession Law Reform Act, when a marriage ends by divorce, any gift to the former spouse is revoked and any appointment of the former spouse as executor is revoked. The will is read as if the former spouse predeceased the testator. As of January 1, 2025, separation can also trigger these revocations after three years of living apart, a separation agreement, or a court order. You should update your will upon separation rather than relying on these automatic provisions. Also note that divorce does not affect beneficiary designations on life insurance, RRSPs, TFSAs, or pensions; those must be changed separately.

An executor (called an estate trustee with a will in Ontario) is the person you name in your will to administer your estate after death. Their responsibilities include: locating and securing your assets; applying for probate if required; notifying beneficiaries and potential claimants; paying your debts, taxes, and funeral expenses; managing estate assets during administration; filing final tax returns; distributing assets according to your will; and keeping records of all transactions. Being an executor is a significant responsibility that can take months or years. Choose someone trustworthy, organized, and capable.

Yes. Naming co-executors is common, particularly for spouses naming each other and a child, or for parents naming multiple children. Advantages include shared workload, mutual oversight, and diverse skills. Disadvantages include potential for disagreement, delays when both must sign documents, and complications if co-executors live far apart. Your will should specify whether co-executors must act jointly or may act jointly and severally. Consider naming alternate executors who serve if your first choices cannot or will not act.

A power of attorney is a legal document that authorizes another person (your "attorney") to make decisions on your behalf. In Ontario, there are two main types: a Continuing Power of Attorney for Property (covering financial and legal matters) and a Power of Attorney for Personal Care (covering health care, housing, nutrition, and personal decisions). These documents operate while you are alive; they become particularly important if you become incapable of making decisions yourself. Powers of attorney are essential components of any comprehensive estate plan.

A will takes effect after your death and governs the distribution of your estate. A power of attorney operates while you are alive and becomes particularly important if you become incapable of managing your own affairs. Your power of attorney terminates upon your death; it gives your attorney no authority over your estate after you die. Your executor (named in your will) then takes over. A complete estate plan includes both a will and powers of attorney.

Without a power of attorney for property, if you become mentally incapable, no one automatically has authority to manage your finances, not even your spouse. Your family would need to apply to court to become your guardian of property. This process is time-consuming, expensive (potentially thousands of dollars), and intrusive. For personal care decisions, the Health Care Consent Act creates a statutory hierarchy of substitute decision-makers (spouse, parent, child, sibling), but a power of attorney for personal care allows you to choose your decision-maker and provide guidance on your wishes. Having powers of attorney avoids these problems and saves your family significant stress and expense.

No. Your attorney under a power of attorney for property has broad authority over your financial affairs, but making or changing a will is explicitly excluded. Only you can make testamentary decisions. Similarly, your attorney cannot change beneficiary designations on your life insurance, RRSPs, or other accounts that you have specifically designated.

Yes. You can appoint multiple attorneys to act together (jointly), separately (severally), or jointly and severally. Joint means both must agree on every decision, which provides oversight but can cause delays. Several means either can act independently. Joint and several means they can act together or independently. You can also appoint alternate attorneys who serve if your first choices cannot. If you appoint multiple attorneys, ensure they can work together and communicate well.