Estate planning for Ontario families and business owners.

What estate planning is, and who needs it

Estate planning is the work of deciding, in writing, what happens to the people and property you care about if you die or can no longer make decisions for yourself. In Ontario, a complete plan usually covers three things: who inherits what, who is in charge of carrying out your wishes, and who makes decisions for you if illness or injury means you cannot make them yourself.

Many people think of estate planning as something for the very wealthy or the very old. In practice, the people who benefit most are often in the middle of life: parents of young children, couples who have just bought a home, people in a second marriage, and owners of a growing business. Those are the moments when the gap between what you want and what the law would do on its own tends to be widest.

What a plan does for your family

A good estate plan replaces guesswork with clear instructions. It tells your family who should look after your children, who should manage your money, and who should speak with your doctors. It sets out who receives your property and when. It also tries to keep avoidable taxes, delays and court steps to a minimum.

Clear written wishes also reduce the risk of family disagreement later. When people know what you wanted, and why, they are far less likely to argue about it.

Who should have an estate plan

If you are 18 or older and own anything, care for anyone, or would want a say in your own medical care, you have reasons to plan. You should give it particular attention if you:

• Have children under 18, or a child of any age who may need long-term support.
• Own a home, investments, registered accounts or life insurance.
• Own shares in a private company, or run a business with partners.
• Are married, in a common-law relationship, separated, or in a blended family.
• Have recently moved to Ontario from another province or country.
• Have a will that is more than a few years old.

Estate planning with one firm for your family and your business

Agile Legal Solutions is an estate planning and corporate law firm in Richmond Hill. Estate planning is our first practice, and we serve families and owners of small and medium-sized businesses across Ontario. Many of our clients own a company, which is why we plan the business you build and the legacy you leave side by side, rather than as two separate projects.

Clients meet with us by video from anywhere in Ontario, or in person at our Richmond Hill office on East Beaver Creek Road. If you are looking for an estate planning lawyer in Richmond Hill, Markham, Vaughan or further afield, the process is the same: we listen first, explain each choice in plain language, and give you a clear quote before any work begins.

This page is general information about estate planning in Ontario, not legal advice. Every family is different, and the right plan depends on your own circumstances. Speak with a lawyer before acting on anything here.

The documents in an Ontario estate plan

Most estate plans in Ontario are built on three documents: a will, a continuing power of attorney for property, and a power of attorney for personal care. Each one does a different job, and each one fills a gap the others leave open. You can read more about how we prepare them on our wills and powers of attorney page.

Your will

A will speaks only after your death. It names your estate trustee (the Ontario term for an executor), says who receives your property, and can name a guardian for children under 18. It can also create trusts, leave specific items to specific people, make charitable gifts and set out wishes about your digital accounts or pets.

A will generally controls only property that forms part of your estate. As we explain below, some assets pass outside the will entirely, so the will has to be written with the whole picture in mind.

Your continuing power of attorney for property

A continuing power of attorney for property lets the person you choose, called your attorney, manage your finances if you can no longer do so. That can include paying bills, dealing with your bank, filing tax returns, managing investments and, for business owners, dealing with shares you own. Under Ontario’s Substitute Decisions Act, 1992, you must generally be at least 18 to make one.

The word “continuing” matters. It means the document keeps working if you lose mental capacity, which is exactly when it is needed most. A power of attorney for property ends at death; from that point, your will and your estate trustee take over.

Your power of attorney for personal care

A power of attorney for personal care names the person who makes health care, housing, nutrition, hygiene, clothing and safety decisions for you if you cannot make them yourself. You can generally make one from age 16. You can also include instructions or wishes about treatment, so the person you choose is not left guessing. Our article on power of attorney for property vs personal care explains the difference in more detail.

Why the three documents belong together

Planning only for death leaves a serious gap. If you have a stroke, a serious accident or dementia, your will does nothing, because you are still alive. Without powers of attorney, your family may have to apply to court to be appointed your guardian, or deal with the Office of the Public Guardian and Trustee, before anyone can manage your affairs. That takes time, can be stressful and is usually avoidable.

Preparing all three documents together also keeps them consistent. The people you name, the instructions you give and the way your property is held should all point in the same direction.

Choosing your estate trustee, guardians and attorneys

The people you appoint matter as much as the words in your documents. A carefully drafted will can still go wrong if the person carrying it out is unwilling, unavailable or unsuited to the job. For many people, these choices are the hardest part of the process, so it helps to think about them before your first meeting.

Your estate trustee

Your estate trustee gathers your assets, pays your debts and taxes, keeps records and distributes what is left according to your will. Depending on the estate, that may involve applying to court for a Certificate of Appointment of Estate Trustee, working with your accountant on final tax returns and dealing with banks, insurers and government offices. It is real work that can take many months.

Good estate trustees are usually organized, honest, available and able to work with your family. They do not need to be lawyers or accountants, because they can hire professional help. It is generally wise to name at least one alternate in case your first choice cannot act. If you name two or more people to act together, consider how they will make decisions if they do not agree.

Living outside Ontario does not automatically disqualify someone, but it can create practical complications, and a court may in some cases require a bond. That is worth discussing with your lawyer when you choose.

Guardians for young children

If you have children under 18, your will can name the person you want to care for them. Under Ontario law, an appointment in a will is generally temporary: it lasts for 90 days, and the person you name needs to apply to court for custody within that period. The court decides based on the child’s best interests, but your choice carries real weight.

It often makes sense to separate the role of caring for a child from the role of managing the child’s money. The person who will raise your children well may not be the best person to invest their inheritance, and splitting those roles can protect everyone.

Your attorneys for property and personal care

Your attorney for property should be someone you trust completely with your finances, since they will have wide authority while you are alive. Your attorney for personal care should know your values and be able to speak up for you with doctors and care homes. Some people name the same person for both roles; others choose differently.

• Ask each person before you name them, and make sure they are willing.
• Name alternates in case your first choice cannot act.
• Think about where each person lives and how much time they have.
• Tell them where your original documents are kept.

We talk through these choices with you and explain how each role works in practice, so you can decide with a clear understanding of what you are asking of the people you name.

How property passes in Ontario: through the will and outside it

One of the most common surprises in estate planning is learning that a will does not control everything you own. In Ontario, property generally passes in one of two ways: through your estate under your will, or directly to someone else outside the estate. Knowing which assets go which way is central to a plan that actually works.

Property that passes through your will

Assets held in your name alone, with no named beneficiary, usually form part of your estate. Examples include a bank account in your sole name, non-registered investments, a car, personal belongings and, in many cases, shares in a private company. Your estate trustee deals with these assets, and they may be counted for probate and Estate Administration Tax.

Property that passes outside your will

Some assets usually pass directly to another person, regardless of what your will says:

• Jointly owned property with a right of survivorship, such as a home or bank account held jointly with a spouse, which generally passes to the surviving owner.
• Registered plans with a named beneficiary, such as RRSPs, RRIFs and TFSAs, which usually go straight to that beneficiary.
• Life insurance with a named beneficiary, which usually goes to that person rather than to your estate.
• Some pensions, where the plan rules decide who receives benefits.

Why the difference matters

Imagine a will that divides everything equally between three children, while most of the value sits in a registered account naming one child as beneficiary. The equal division may not happen at all. Or the estate may be left with the tax bill on that registered account while the money itself has gone elsewhere. Your accountant can explain how registered plans are generally taxed at death, and we make sure your documents and designations work together.

Joint ownership with adult children

Some parents add an adult child to a bank account or property title to avoid probate. That can create problems. Following the Supreme Court of Canada’s 2007 decision in Pecore v. Pecore, when a parent puts an asset into joint names with an adult child without payment, the law generally presumes the child holds it in trust for the parent’s estate, unless there is evidence the parent intended a gift. If intentions are not documented, that uncertainty can lead to family disagreement.

Joint ownership can also expose the asset to the child’s creditors or relationship breakdown, and it may have tax consequences. It is a tool that sometimes makes sense, but it should be a deliberate decision, ideally with a written record of what you intend.

Probate and Estate Administration Tax

Probate is the court process that confirms an estate trustee’s authority to deal with a deceased person’s assets. In Ontario, the formal result is called a Certificate of Appointment of Estate Trustee. Banks, investment firms and land registry offices often ask for one before they will release or transfer assets, especially larger ones. Our probate page explains how we help estate trustees with that process.

How Estate Administration Tax works

When an estate trustee applies for a certificate, Ontario charges Estate Administration Tax on the value of the estate being probated. There is no tax on the first $50,000. Above that, the tax is $15 for every $1,000 (or part of $1,000), which works out to roughly 1.5% of the value above $50,000. On an estate valued at $1 million, that is about $14,250.

Within 180 days after the certificate is issued, the estate trustee must generally file an Estate Information Return with the Ministry of Finance, listing the estate’s assets and their values. Accurate records from the start make that step much easier.

Smaller estates

Ontario has a simplified small estate procedure for estates valued at up to $150,000. It involves less paperwork than a standard application, although Estate Administration Tax still applies above the first $50,000. Whether it suits a particular estate depends on what the estate contains.

Planning to reduce probate

Good estate planning in Ontario looks at probate from two angles: reducing the value that has to go through it, and making the process easier for your estate trustee when it cannot be avoided. Common approaches include:

• Naming beneficiaries on registered plans and life insurance where that fits the rest of the plan.
• Holding some assets jointly with a spouse, with a clear record of intent.
• Using multiple wills, so that assets that usually do not need probate, such as private company shares, sit in a separate will.
• Using trusts in some situations, after advice from both your lawyer and your accountant.

Each of these has trade-offs. Saving Estate Administration Tax is only worthwhile if it does not create bigger problems, such as unequal treatment of children, exposure to creditors, unexpected income tax or uncertainty about who owns what. We explain the trade-offs plainly and work with your accountant on the tax side.

Estate planning for business owners

For many owners of small and medium-sized businesses, the company is the largest asset they have and the main source of income for their family. Yet the business is often the part of an estate plan that gets the least attention. A will that says “everything to my spouse” does not say who will run the company, sign cheques or vote the shares.

Because we practise both estate law and corporate law, we plan the two together. The estate plan and the company’s records should agree, or the plan may not work when your family needs it.

Primary and secondary wills for private company shares

Ontario courts have accepted the use of multiple wills since the late 1990s. A business owner will often sign a primary will for assets that need probate, and a secondary will for assets that usually do not, such as shares in a private corporation. Because the secondary will is generally not submitted for probate, the value of those shares is usually left out of the Estate Administration Tax calculation.

The wording of the two wills matters a great deal. Each must clearly describe which assets it covers, the two must not accidentally revoke each other, and the company’s own documents must allow the estate trustee to deal with the shares without a probate certificate. Our article on secondary wills for private company shares explains the idea in more depth.

Aligning your will with your shareholders’ agreement

If you own a company with partners, your shareholders’ agreement may already decide what happens to your shares if you die or become incapable. Many agreements include buy-sell clauses that require the surviving shareholders to buy a deceased owner’s shares, sometimes funded with life insurance. If your will leaves those shares to your children while the agreement requires a sale, the two documents pull against each other. We read them side by side and make sure they agree.

Powers of attorney that can vote your shares

If you become incapable, someone needs to be able to act as a shareholder: vote your shares, sign resolutions and deal with your bank. A continuing power of attorney for property can generally do this, but it is wise to make that authority clear, and some owners choose a separate power of attorney for business assets. Being a director is a different matter. A director’s role is generally personal, so your corporate records should also plan for who steps in on the board.

Succession and estate freezes

Succession planning asks who will own and run the business next, and when. An estate freeze is a common tool: the owner exchanges common shares for fixed-value preferred shares, and new common shares are issued to the next generation or a family trust, so that future growth is generally taxed in their hands. Freezes involve significant tax considerations, so we work with your accountant, who leads on the tax analysis while we handle the legal documents.

• Wills that treat company shares correctly.
• A shareholders’ agreement that matches your estate plan.
• Powers of attorney that let someone act for you as a shareholder.
• A succession plan coordinated with your accountant.

Our corporate law practice handles the company side, so both plans stay in step as the business changes.

Trusts in an estate plan

A trust is an arrangement where one person, the trustee, holds and manages property for the benefit of someone else, the beneficiary. Trusts can be created during your lifetime or, more commonly in everyday estate planning, in your will. A trust created in a will is called a testamentary trust, and it takes effect only after your death. Our trusts page covers how we set them up.

Trusts are not only for large estates. They are a practical way to control when and how someone receives an inheritance, and to protect people who may not be ready, or able, to manage money on their own.

Trusts for minor children

In Ontario, a child under 18 generally cannot receive an inheritance directly. If your will does not set up a trust, money left to a minor may have to go into court, where it is held until the child turns 18. At that point the child generally receives it all at once, which few parents would choose for an 18-year-old.

A trust in your will lets the trustee you choose manage the money and use it for your child’s education, health and support. You can decide the age, or ages, at which your child receives the capital, for example a portion at 21, 25 and 30.

Henson trusts for a family member with a disability

If you have a child or other family member who receives, or may one day receive, benefits under the Ontario Disability Support Program (ODSP), an outright inheritance could affect their eligibility. A Henson trust is a fully discretionary trust: the beneficiary has no right to demand payments, and the trustee decides when and how to use the funds. Assets held in a properly drafted Henson trust are generally not counted for ODSP purposes. The drafting must be precise, and the choice of trustee is especially important.

Protective trusts

Some beneficiaries are adults but may still need protection, perhaps because of addiction, difficulty managing money, a vulnerable relationship or exposure to creditors. A protective or “spendthrift” style trust gives your trustee discretion over payments, so the inheritance supports the beneficiary rather than disappearing quickly. These trusts can be tailored to the person and the concern.

Other uses of trusts

• Providing for a surviving spouse during their lifetime, with the remaining capital going to your children afterwards.
• Holding shares of a family company during a transition between generations.
• Setting aside funds to care for a pet.

Trusts have their own tax and reporting rules, and those rules change from time to time. Speak with your accountant about the tax side; we draft the trust to work alongside that advice.

Planning for blended families, second marriages and spouses

Blended families are common, and they bring planning questions that a simple will often does not answer. How do you provide for a new spouse while also protecting what you want to leave to children from an earlier relationship? How do you treat stepchildren you have raised as your own? The law does not answer those questions for you, so your plan needs to.

Balancing a spouse and children from an earlier relationship

A common worry is the “everything to my spouse” will. If you leave everything to your spouse, they can generally change their own will later, and your children may receive nothing. That may not be what either of you intends.

There are several ways to plan for this. A spousal trust can give your spouse income, or the use of a home, for their lifetime, with the remaining capital passing to your children afterwards. Life insurance can provide directly for one group while the estate provides for another. Some couples set out their intentions in a marriage contract or cohabitation agreement, prepared with separate family lawyers. The right mix depends on your family and what you own.

Stepchildren

Stepchildren are generally not treated as your children for inheritance purposes unless you have adopted them. If you want a stepchild to share in your estate, your will should say so clearly and name them.

Spouses’ rights as a planning consideration

In Ontario, a married spouse may have rights under the Family Law Act that sit alongside your will. In general terms, a surviving married spouse may be able to choose an equalization of net family property instead of what the will provides. People who depended on you financially may also be able to ask for support from your estate. Common-law partners are treated differently from married spouses in several respects.

We raise these points as part of planning, not to alarm anyone. A plan that takes these rights into account from the start is far more likely to be carried out as you intended, and far less likely to lead to family disagreement later. For questions about family law rights themselves, you should also speak with a family lawyer.

Practical steps for blended families

• Review how your home and accounts are held, since joint ownership may pass everything to your spouse automatically.
• Check beneficiary designations on registered plans and life insurance.
• Choose an estate trustee whom both your spouse and your children can work with.
• Consider explaining your plan to your family, so that no one is surprised.

Every blended family is different. The goal is a plan that is fair by your own standards and clear enough that your family understands it.

When to update your estate plan

An estate plan is not a one-time project. Your documents speak as of the day you sign them, but your life keeps changing. A will that was perfect ten years ago may now name an estate trustee who has moved away, leave gifts to someone who has died, or ignore a business you started since. Our will review service is designed for exactly this.

Marriage no longer revokes a will

Since January 1, 2022, getting married no longer automatically revokes a will in Ontario. Before that change, marriage cancelled an earlier will, and many people were caught out. Now, a will made before marriage generally stays in force, which means it may still leave everything to a former partner, a sibling or a parent, and nothing to your new spouse. If you marry, review your will.

Separation

Also since January 1, 2022, if you and your married spouse are separated at the time of your death, as defined in the legislation, your spouse may generally be treated as if they had died before you for the purposes of gifts and appointments in your will. That rule does not necessarily apply in the same way to beneficiary designations, joint property or common-law relationships, so separation is a clear signal to review your whole plan rather than rely on the default rules.

Other life events that call for a review

• The birth or adoption of a child or grandchild.
• A child reaching adulthood, or a beneficiary developing a disability.
• Moving to Ontario from another province or country.
• Starting, buying or selling a business, or bringing in new shareholders.
• A large change in your assets, such as an inheritance or the sale of a property.
• The death, illness or relocation of someone you named in your documents.

Business changes

For business owners, corporate changes are among the most important triggers. A reorganization, a new class of shares, a new shareholders’ agreement or the sale of the company can all affect how your wills and powers of attorney work. If you are buying or selling a business, it is a good time to update your estate plan at the same time.

A simple rule of thumb

Even without a major event, it is usually sensible to look over your estate plan every three to five years. Laws change, and so do families. A short review can confirm your documents still work, or identify the small changes that will keep them working.

Signing your will and powers of attorney correctly

A well-written will can still fail if it is not signed properly. Ontario has specific formal requirements for wills and powers of attorney, and following them carefully is one of the simplest ways to protect your family from problems later.

Formal wills and witnesses

A typed or printed will in Ontario generally needs to be signed by you at the end, in the presence of two witnesses who are present at the same time. The witnesses then sign in your presence. A beneficiary, or the spouse of a beneficiary, should not act as a witness, because a gift to a witness or their spouse can be void. In practice, many people use a lawyer and a member of the lawyer’s staff as witnesses.

It is also good practice for a witness to sign an affidavit of execution at the time of signing. That affidavit can later be used to show the will was signed correctly, which helps your estate trustee if a probate application is needed.

Holograph wills

Ontario recognizes holograph wills: wills written entirely in your own handwriting and signed by you, without witnesses. They are valid, but they carry real risks. Wording is often unclear, important issues are left out, and they can be hard to prove. A holograph will can be better than nothing in a pinch, but it is rarely a substitute for a properly prepared plan.

Video witnessing

Ontario permits wills and powers of attorney to be witnessed remotely by video, as long as at least one of the witnesses is a licensee of the Law Society of Ontario, meaning a lawyer or paralegal. The rules set out how the signing must happen, including how the documents are signed and exchanged. This makes it possible to complete your plan without travelling to an office, which is helpful for clients across the province, for people with mobility concerns and for busy business owners.

Signing powers of attorney

Powers of attorney also need two witnesses, and the list of people who cannot witness is longer than for wills. In general terms, your attorney, your spouse or partner, the attorney’s spouse or partner, your child and anyone under 18 should not witness. These details are easy to get wrong without guidance.

Once your documents are signed, keep the originals somewhere safe and tell the people you have named where to find them. A copy is usually not enough if the original is lost.

What happens if you die without a will in Ontario

If you die without a valid will, you are said to die intestate. Ontario law then decides who inherits your estate and in what shares, using a fixed formula in the Succession Law Reform Act. The formula does not consider your relationships, your wishes or your family’s needs. It simply applies.

How an estate is generally divided

In general terms, the rules work like this:

1. If you leave a married spouse and no children, your spouse generally receives the entire estate.
2. If you leave a married spouse and children, your spouse is generally entitled to a first portion, called the preferential share, which is $350,000 for deaths on or after March 1, 2021. Anything above that is divided between your spouse and your children: half to your spouse if there is one child, or one-third to your spouse if there are two or more children.
3. If you leave children but no married spouse, your children generally share the estate equally.
4. If you leave no spouse and no children, the estate generally passes to other relatives in a set order, such as parents, then siblings, then nieces and nephews.

If there are no relatives who qualify, the estate may go to the Province of Ontario.

Common-law partners

Under Ontario’s intestacy rules, a common-law partner generally does not inherit, no matter how long you lived together. A common-law partner may have other options, but they can be uncertain and stressful at a difficult time. If you live common-law, a will is especially important.

Other consequences

• No one is pre-selected to manage your estate, so a family member must apply to court to be appointed, and may need to post a bond.
• A minor child’s share may have to go into court until the child turns 18, and then be received outright.
• No guardian is named for your young children.
• There is no chance to use secondary wills, trusts or other planning tools.
• Shares in your company may sit with an estate that has no clear direction.

For business owners, intestacy can be particularly hard on the company. Without a will or a clear shareholders’ agreement, there may be no one with clear authority to vote the shares or make decisions while the estate is sorted out, which can affect employees, customers and lenders.

The good news is that intestacy is entirely avoidable. A will, even a straightforward one, puts the decisions back in your hands.

How working with Agile Legal Solutions works

We aim to make estate planning clear and manageable from the first conversation to the signing and beyond. Andy Chan, our lead lawyer, is licensed in Ontario and also admitted in New York, and leads our estate planning work. Here is what you can expect.

1. A 30-minute consultation

We start with a 30-minute consultation by video from anywhere in Ontario, or in person at our office at 120 East Beaver Creek Rd., Suite 200-A, in Richmond Hill. We ask about your family, what you own, any business interests and what matters most to you. You can ask questions and get a sense of how we work.

2. A clear quote before any work begins

After the consultation, we recommend the documents that fit your situation and explain why. You get a clear quote before any work begins, so you know what to expect and can decide without pressure.

3. Gathering details

We collect the information we need: the people you are naming, a summary of your assets and how they are held, beneficiary designations and, for business owners, your company’s records and any shareholders’ agreement. If your accountant is involved, we coordinate with them directly with your permission.

4. Drafts reviewed with you

We prepare draft documents and go through them with you, line by line where needed. We explain each choice in plain language and make changes until the documents reflect what you want. Nothing is signed until you are comfortable.

5. Signing

We supervise the signing in person or by video, following Ontario’s formal requirements for wills and powers of attorney, including remote witnessing where that suits you.

6. Keeping your documents safe

Original documents matter. We discuss where your originals will be kept and how the people you have named can find them. We also give you copies to keep for reference.

7. Reviews over time

Life changes, and your plan should change with it. We encourage clients to check in after major events, such as marriage, separation, a new child or a change in the business, and to review the plan every few years. Because we also practise corporate law, we can update your estate plan and your company documents together.

When you are ready, request a consultation and we will take it from there.

What to bring to your first meeting

You do not need to have everything worked out before you meet with an estate lawyer. Part of our job is to help you think through the decisions. That said, a little preparation helps you get the most out of your 30-minute consultation and makes the drafting stage faster.

About you and your family

• Full legal names and dates of birth for you, your spouse or partner, and your children.
• Details of any earlier marriages, separation agreements or marriage contracts.
• Notes on any family member with special needs or who receives ODSP.
• The names of the people you are considering as estate trustee, guardian and attorneys, and their alternates.

About what you own

• A rough list of your assets and debts, with approximate values.
• How major assets are held: in your name alone, jointly, or through a company.
• Beneficiary designations on RRSPs, RRIFs, TFSAs, pensions and life insurance.
• Any property or accounts outside Ontario.
• A note of important digital accounts, such as online banking, email and photo storage, without passwords.

For business owners

• Your company’s name and your shareholding.
• Any shareholders’ agreement or partnership agreement.
• Your accountant’s contact details, and any notes on past reorganizations or estate freezes.
• Your thoughts on who should run or own the business next.

Your existing documents

If you already have a will or powers of attorney, bring copies, even if they are old or were made in another province or country. They show us what you decided before and help us see what needs to change.

Your questions and wishes

Write down anything you want to discuss: specific gifts, charitable gifts, plans for a pet, wishes about your funeral or medical care, or concerns about a particular family member. The more we understand about what matters to you, the better the plan will fit.

If you are not sure about something, bring the question anyway. Clients come to us from Richmond Hill, across York Region and throughout the GTA, and the first step is always the same: a conversation about your family, your business and what you want to leave behind.

Common questions

This page is general information about Ontario law, not legal advice for your situation.