Wills 101: Do I Really Need a Will?

Contemplating death is never easy. However, unless technology finds a way to eliminate death altogether, in the words of Benjamin Franklin, two things remain certain: death and taxes. Until then, estate planning ensures that your loved ones are cared for during what will undoubtedly be a difficult time and guarantees that your wishes over the fruits of your labour are respected.  

1.     Reduce Costs and Complications

A properly drafted will simplifies the administration of your estate and reduces costs. A will sets out how your assets are to be distributed and, perhaps most importantly, allows you to appoint an estate trustee—the person responsible for managing your estate.

If you pass away without a will appointing an estate trustee, your family will need to apply to the court to have someone appointed. Until that happens, your family will not be able to deal with your assets. Typically, the spouse, next of kin, or both may apply, but this process is more complex and therefore, more costly than if you had a will.

By designating your estate trustee in advance, you choose the person best suited for the role and make the process easier for your loved ones.

2.     Ensure Your Wishes Are Followed

In the absence of a will, your estate will be divided under Ontario’s laws of intestacy. Intestacy means to die without a valid will. These rules may lead to unintended results as distributions are based on the class and degree of relationship to the deceased.

Normally, this means that your spouse, children or other issue will receive shares of your estate. However, if you are in a common-law relationship, your spouse will not be entitled to inherit under intestacy laws.[1] This can have devastating consequences for your spouse. While your common-law spouse may be able to make a claim as a dependent or under a constructive trust, this complicates the process and increases costs. Stepchildren are also excluded under intestacy laws unless legally adopted.

If someone dies intestate and leaves a spouse and children, the spouse is entitled to the first $350,000.00 of the estate.[2] This amount is called the “preferential share.” If the estate is worth $350,000.00 or less, the spouse inherits everything. If the estate is worth more than $350,000.00 and there is more than one child, the spouse receives the first $350,000.00, and the remainder is divided into three.[3] One part goes to the spouse, and the other two parts are divided equally among the children.

In the absence of a valid will, your estate distribution can be vastly different from what you intended.

3.     Plan Strategically and Minimize Taxes

Preparing a will allows you to plan ahead and preserve more of your estate. In Ontario, estates must pay an estate administration tax or probate fees when applying for a certificate of appointment of estate trustee. This is the court process that validates a will, confirms the authority of the chosen estate trustee, and grants legal authority to manage the estate. The estate administration tax is calculated at $15.00 for every $1,000.00 of the estate’s value after the first $50,000.00.[4] Careful estate planning and a properly drafted will can assist you in minimizing the amount your estate will lose to taxes and preserving more of your estate for your beneficiaries.

4.     Act While You Have Capacity

One of the key legal requirements for making a will is testamentary capacity. In other words, the ability to understand what it means to create a will, the nature and extent of your assets, and who might expect to benefit from the estate, among other criteria. Because capacity may be affected by age or illness, it is prudent to address your estate planning sooner rather than later.

Estate planning may involve difficult conversations and reflections, but it can also bring you a sense of relief and peace of mind to know that your loved ones will be protected in the face of the inevitable. Whether you draft a will yourself or with the help of a lawyer, having a valid will is an essential step in safeguarding your legacy.  

[1] Succession Law Reform Act, RSO 1990, c S.26, s 1(1).

[2] Ibid, s 45(1).

[3] Ibid, s 46(2).

[4] Estate Administration Tax Act, 1998, SO 1998, c 34, Schedule, s 2(6.1).

Last Updated: September 5, 2025

Disclaimer: This article is intended for general information purposes only. It is not intended as legal advice. It does not create a lawyer-client relationship and may not address your specific circumstances. You should consult with a qualified lawyer.