Do You Need a Will in Ontario? What Happens If You Don't Have One

Most people know they should have a will. Far fewer actually have one. If you are among the majority who have been putting it off, this article is for you — because dying without a will in Ontario has real, often painful consequences for the people you leave behind.

The short answer is yes: almost every adult in Ontario benefits from having a will. Without one, a set of default rules built into provincial law decides who gets your property, who raises your children, and who manages your affairs — and those rules may look nothing like what you would have chosen.

What "Dying Without a Will" Actually Means

When someone dies without a valid will, they die intestate. Ontario's Succession Law Reform Act (SLRA) contains a detailed intestacy scheme — a formula for distributing estate assets among surviving relatives. The government does not take your estate simply because you have no will (that is a common myth). But the SLRA's formula is rigid and one-size-fits-all, with no room for your personal wishes, family circumstances, or practical needs.

Who Inherits Under Ontario's Intestacy Rules?

The SLRA distributes your estate in a specific order, based on which relatives survive you.

Spouse and Children

If you leave a spouse and children, your spouse receives a preferential share of the estate first (a set dollar threshold; verify the current amount with a lawyer, as it can be updated by regulation). Whatever remains above that threshold is divided between your spouse and children in proportions set by the SLRA — regardless of the children's ages or needs.

Important: Under the SLRA, "spouse" generally means a legally married spouse. Common-law partners do not automatically inherit under Ontario's intestacy rules, even after decades together. This is one of the most consequential gaps in the default rules.

No Spouse, Children Only

If you have no spouse but leave children, your estate is divided equally among them. If a child has predeceased you, that child's share passes to their own children (your grandchildren) under the concept of representation.

No Spouse or Children

The estate passes in order to: parents → siblings → nephews and nieces → next of kin. The rules continue branching outward until a relative is found. Only if no relative can be located does the estate go to the Crown.

What the Formula Cannot Do

The intestacy rules cannot:

• Leave a specific item (your car, a piece of jewellery, a family heirloom) to a particular person.
• Benefit a common-law partner, close friend, or charity.
• Create a trust for a child with a disability or a minor.
• Reflect blended-family dynamics — step-children receive nothing under intestacy.
• Account for the fact that one of your children needs more support than the others.

Who Manages the Estate Without a Will?

Without a will, there is no executor to step forward immediately. A family member must apply to the court for a Certificate of Appointment of Estate Trustee Without a Will. The court decides who is entitled to apply, which can trigger family disputes and delays — often at the worst possible time.

The court-appointed estate trustee must administer the estate according to the SLRA's formula, even if the family would have preferred a different arrangement.

What About Minor Children?

This is perhaps the most urgent reason for parents of young children to have a will: only a will lets you name a guardian.

If both parents die without naming a guardian, a family member must apply to court to be appointed. The court will decide what is in the child's best interests — without any guidance from you. That process is stressful, expensive, and sometimes contentious. A will does not bind the court, but it provides powerful evidence of your wishes and often prevents a dispute from arising at all.

Additionally, without a trust in your will, any inheritance going to a minor is managed by the Office of the Children's Lawyer until the child turns 18, at which point the entire sum is paid out — whether or not an 18-year-old is ready to handle it.

Common Misconceptions About Wills

"My spouse will automatically get everything."

Not under Ontario law if you have children. The SLRA splits the estate between your spouse and children above the preferential share threshold. A will is the only way to guarantee your spouse inherits the full estate.

"I don't have enough assets to bother."

A will is not just about money. It names an executor, names guardians for children, expresses wishes about digital accounts and personal effects, and can prevent family conflict that would cost far more than a will ever would.

"I can do it later."

Capacity can be lost suddenly — through accident or illness — and a will made under duress or lacking capacity can be challenged. Making a will while you are healthy and clear-headed is straightforward; waiting introduces real risk.

What a Valid Will Must Include in Ontario

Under Ontario law, a formal will must be:

• In writing.
• Signed by the testator (the person making the will) in the presence of two witnesses.
• Signed by both witnesses in the presence of the testator and each other.

Witnesses cannot be beneficiaries or the spouse of a beneficiary, or their gift under the will may be voided.

Ontario also recognizes holograph wills — entirely handwritten and signed by the testator, with no witnesses required. While valid, holograph wills are easy to challenge and often poorly drafted, creating ambiguity that leads to litigation. A lawyer-prepared will is strongly preferred.

Frequently asked questions