Home / Resources / Wills, Estates & Powers of Attorney / Will Drafting
ESTATE PLANNING GUIDE
Will Drafting in Ontario
A practical guide to choosing an estate trustee, naming beneficiaries, planning for children, structuring gifts and creating a will that reflects how you actually want your estate handled.
A will is not simply a list of who gets what. It is a set of instructions for who should administer the estate, how debts and taxes are handled, what happens to the residue, how gifts are protected and what should happen if a person named in the plan dies first.
Prepared by Tatyana Trusz, Trusz Law • Updated July 2026 • 15 min read
QUICK ANSWER
What does a will actually do?
A will sets out who should administer the estate and how property controlled by the estate should be distributed after death. It can appoint an estate trustee, make specific gifts, distribute the residue, create trusts and address what happens if a beneficiary dies before the will-maker.
A will does not necessarily control every asset. Jointly held property, registered plans, insurance and other assets with valid beneficiary or ownership arrangements may pass outside the estate. That is why the will should be reviewed as part of the person’s full estate plan—not in isolation.
IN THIS GUIDE
RELATED ESTATE PLANNING
READY TO MAKE A WILL?
Start with the decisions—not the document.
Who should act, who should benefit and what should happen if the first plan cannot happen?
THE SHORT ANSWER
A will is the operating plan for the estate
A carefully drafted will should answer:
- Who should act as estate trustee?
- Who receives specific gifts?
- Who receives the residue after debts, taxes and expenses?
- What happens if a beneficiary dies first?
- Should a beneficiary receive property outright or through a trust?
- How should a business interest, cottage or other difficult asset be handled?
- What powers should the estate trustee have?
- How should the plan interact with beneficiary designations and jointly held property?
The strongest wills also address second-choice decisions. An estate plan can fail where the document says what should happen only if everyone named is alive and willing to act.
KEY TAKEAWAYS
At a glance
- Ontario does not legally require everyone to have a will, but dying without one means the estate is distributed under statutory intestacy rules.
- A will should appoint an estate trustee and provide backup choices.
- Young beneficiaries often require trust planning rather than a simple outright gift.
- A will does not automatically control every jointly owned asset or every asset with a valid beneficiary designation.
- Ontario recognizes formal witnessed wills and holograph wills; remote witnessing is also available under statutory conditions.
- Marriage no longer automatically revokes an Ontario will.
- A will should be reviewed after major family, relationship, business and asset changes.
INTESTACY
What happens if someone dies without a will in Ontario?
If a person dies without a valid will, the estate is distributed under Ontario’s intestacy rules rather than the person’s informal wishes.
Someone may also need to apply to the court for authority to administer the estate because there is no estate trustee appointed by a will.
Dying without a will can create practical problems such as:
- no personally selected estate trustee;
- no customized plan for young or vulnerable beneficiaries;
- no specific charitable or personal gifts;
- no tailored backup plan;
- greater uncertainty about who should administer the estate; and
- distribution under legislation rather than personal instructions.
A will does not eliminate every estate-administration issue, but it lets the person make decisions before someone else has to ask the court or rely on the default rules.
KEY DRAFTING DECISIONS
What decisions need to be made before a will is drafted?
1. Choose the estate trustee.
The estate trustee may need to gather assets, deal with creditors and taxes, apply for probate where required, maintain records and distribute the estate. Choose someone capable, trustworthy and realistically able to act.
2. Name backup estate trustees.
The first person may die first, become incapable, move away or decline the role.
3. Identify specific gifts carefully.
Cash, personal property, real estate or business interests can be gifted specifically, but the will should address what happens if the asset no longer exists.
4. Define the residue.
The residue is what remains after debts, expenses, taxes and specific gifts. It is often the most important distribution clause.
5. Create backup beneficiary rules.
What happens if a beneficiary dies before the will-maker? Should the gift pass to that person’s children, another named person or fall into the residue?
6. Consider unequal gifts deliberately.
Unequal treatment may be entirely intentional, but the planning discussion should address family circumstances and potential dispute risks.
7. Address difficult assets.
A private business, cottage, foreign property, digital assets or a concentrated investment may require special instructions or coordinated planning.
CHILDREN & TRUSTS
How should a will plan for children and young beneficiaries?
A gift to a young beneficiary usually needs more thought than naming the child and a dollar amount.
The will may need to address:
- who manages the inheritance while the beneficiary is young;
- the age or ages at which capital is distributed;
- whether funds can be used earlier for education, health or support;
- what happens if the beneficiary dies before receiving the full trust;
- who acts as trustee; and
- whether the trust should be flexible or highly structured.
A will can also express wishes regarding guardianship of minor children. That planning should be discussed carefully with the proposed guardian and coordinated with the realities of parenting, geography and family relationships.
For beneficiaries with disabilities, addiction concerns, creditor issues or other vulnerabilities, specialized trust and benefits planning may be appropriate.
“A good will does not only say who receives the estate. It plans for who acts, what happens if someone dies first and how the plan should work when life does not unfold in the expected order.”
— Trusz Law
ASSETS & BENEFICIARY DESIGNATIONS
Does a will control every asset?
Not necessarily.
Some property may pass outside the estate because of:
- joint ownership arrangements;
- life insurance beneficiary designations;
- registered-plan beneficiary designations;
- corporate or partnership agreements;
- trust arrangements; or
- ownership and succession rules in another jurisdiction.
The estate-planning exercise should therefore include an asset map showing:
- what the person owns;
- how each asset is legally held;
- who is named as beneficiary;
- what debt is attached to the asset; and
- whether the will or another legal mechanism controls the transfer.
Beneficiary designations should be coordinated with the will. An old designation can defeat a newer intention if the documents are not reviewed together.
EXECUTION REQUIREMENTS
How is a valid will made in Ontario?
Ontario’s Succession Law Reform Act recognizes several forms of wills.
Formal witnessed will
A will is generally signed by the testator in the presence of two witnesses, who also sign in the required manner.
Holograph will
A person may make a valid will wholly in their own handwriting and signature without the ordinary witnessing formalities.
Remote witnessing
Ontario law permits witnessing through audio-visual communication technology where statutory conditions are satisfied, including the involvement of a Law Society licensee as one of the witnesses.
Execution errors can create costly estate litigation. The person should also consider where the original signed will will be stored and how the estate trustee will know where to find it.
LIFE CHANGES
When should a will be reviewed or updated?
A will should be reviewed after major changes such as:
- marriage or a new long-term relationship;
- separation or divorce;
- birth or adoption of a child;
- death or incapacity of an estate trustee or beneficiary;
- starting, selling or restructuring a business;
- acquiring property in another jurisdiction;
- a major increase or decrease in wealth;
- changes to beneficiary designations; or
- a significant change in family relationships.
Ontario law changed so that marriage no longer automatically revokes a will. That makes active review even more important: the old will may remain in place even though the person assumed marriage changed everything.
Separation can also affect how certain will provisions operate. Relationship changes should be reviewed promptly rather than left to assumptions.
PROBATE & ESTATE ADMINISTRATION TAX
Does having a will avoid probate?
Not automatically.
Probate is the court process used to confirm authority to administer an estate. In Ontario, the court document is generally called a Certificate of Appointment of Estate Trustee.
Whether probate is needed depends on the assets, institutions involved, ownership structure and circumstances.
Ontario currently applies Estate Administration Tax when an estate certificate is issued:
- no Estate Administration Tax is payable where the estate value is $50,000 or less; and
- for estates over $50,000, the tax is $15 for every $1,000, or part of $1,000, of estate value above the threshold under the current framework.
Probate planning should not be reduced to avoiding tax at any cost. Joint ownership, beneficiary designations and other strategies can create legal, family and tax consequences of their own.
COMMON WILL-DRAFTING MISTAKES
Problems that are easier to prevent before the will is signed
Choosing an estate trustee without asking them.
The person may be unwilling or unable to act.
No backup estate trustee.
The plan can stall if the first choice cannot act.
Giving everything to named people without a backup plan.
The will should address premature death of beneficiaries.
Ignoring beneficiary designations.
The will and designations may point in different directions.
Assuming a will controls jointly owned property automatically.
Ownership structure matters.
Leaving a young beneficiary an outright gift with no trust structure.
The timing and management of the inheritance should be considered.
Using vague gifts of personal property.
Ambiguous language can create family disputes over items with emotional value.
Keeping the original will somewhere nobody can find.
The estate trustee needs to know where the original is stored.
Never reviewing the document after a major life change.
A technically valid will can still be badly out of date.
HOW TRUSZ LAW CAN HELP
Turn the family and asset decisions into a plan that can actually be administered.
Trusz Law helps Ontario individuals and families prepare wills that reflect their relationships, assets and practical priorities.
Depending on the matter, that may include estate trustee appointments, specific gifts, residue planning, trusts for children or other beneficiaries, guardianship wishes, business interests, cottages, beneficiary-designation coordination and signing arrangements.
The goal is not simply to produce a signed document. It is to create a plan that answers the difficult second question: what should happen if the first choice or first assumption no longer works?
FREQUENTLY ASKED QUESTIONS
Will-drafting questions people often ask
Do I legally need a will in Ontario?
No. Ontario does not require every adult to have a will. But without a valid will, the estate is distributed under statutory intestacy rules and someone may need to apply to the court for authority to administer it.
What should be included in a will?
A will commonly appoints an estate trustee, names backup trustees, makes specific gifts, distributes the residue, provides backup beneficiary rules and creates trusts where needed.
What is an estate trustee?
The estate trustee is the person responsible for administering the estate. Duties can include gathering assets, dealing with debts and taxes, applying for probate where required, maintaining records and distributing the estate.
Can I leave money to a child in my will?
Yes, but a young beneficiary may need a trust arrangement. The will can set the age of distribution and give the trustee powers to use funds earlier for education, health or support.
Can I name a guardian for my children in my will?
A will can express guardianship wishes, but the family and legal circumstances should be reviewed carefully. The proposed guardian should also be consulted before the document is signed.
Does marriage revoke a will in Ontario?
No. Ontario law changed so that marriage no longer automatically revokes a will. A person should still review the will after marriage because an older document may remain valid even though the family circumstances have changed.
Can I make a handwritten will in Ontario?
Ontario recognizes holograph wills that are wholly in the testator’s own handwriting and signed. Because wording and proof issues can still arise, legal advice may be useful.
Can a will be witnessed remotely in Ontario?
Yes, where the statutory conditions are satisfied. Ontario permits audio-visual witnessing and requires that at least one of the witnesses providing services be a Law Society licensee.
Does a will avoid probate?
Not automatically. Whether probate is required depends on the assets, ownership structure and institutions involved.
How much is Estate Administration Tax in Ontario?
Under Ontario’s current framework, no tax is payable where the estate value is $50,000 or less. For estates over $50,000, the current rate is $15 per $1,000, or part of $1,000, above the threshold.
How often should a will be updated?
Review the will after major life events and periodically even where nothing dramatic has changed. Family relationships, assets, trustees and beneficiary designations can all become outdated.
When should I speak with a lawyer about making a will?
Legal advice is especially useful where there are children, a blended family, a business, a cottage, foreign property, unequal gifts, vulnerable beneficiaries or concerns about future disputes.
OFFICIAL RESOURCES
Further reading
ABOUT THIS RESOURCE
Prepared by Tatyana Trusz, Trusz Law. This resource is for general information only and is not legal, tax or financial advice. Estate planning depends on the person’s family circumstances, assets, ownership structures, beneficiary designations and current law. Last reviewed July 2026.
WILLS & ESTATES RESOURCES
Keep exploring
READY TO MAKE OR UPDATE A WILL?
Start with the people, the assets and the decisions that matter most.
Create a plan for who acts, who benefits and what happens when the first choice is no longer available.
