Many people know they should do estate planning, yet put it off for years. Life gets busy, the subject can feel uncomfortable, and it’s easy to assume there will always be more time. But delaying your estate plan can lead to family disputes, unnecessary costs and lengthy legal processes.
The good news is that most common estate planning mistakes in Ontario are preventable. Below we look at seven common mistakes and explain how working with a wills and estate lawyer in Brampton can help you protect your assets and loved ones.
Mistake #1: Dying Without a Will in Ontario
Dying without a valid will (known as dying “intestate”) means Ontario law decides who inherits your estate, not you. Part II of the Succession Law Reform Act (SLRA) sets out a rigid formula for distributing assets among a spouse, children, and other relatives.
A common misconception is that the surviving spouse automatically receives everything. In reality, where someone dies intestate with a spouse and children, the spouse receives the applicable preferential share, with the remainder distributed according to the rules in the Act. For deaths occurring on or after March 1, 2021, the preferential share is $350,000.
It’s also worth noting that common-law partners have no automatic inheritance rights under the SLRA, regardless of how long the relationship lasted. Without a will, a long-term common-law partner could be left with nothing under the default rules and would need to pursue a separate legal claim for support.
Mistake #2: Failing to Update Your Will After Major Life Events
Marriage, separation, divorce, and the birth or adoption of a child are all reasons to review your estate plan.
Since January 1, 2022, marriage no longer automatically revokes an existing will in Ontario. This means an old will may remain in effect after a marriage, even if it no longer reflects your wishes or adequately provides for your new spouse.
Separation and divorce can also affect how a will operates. Under the amended SLRA, certain provisions benefiting a separated spouse may cease to apply once the statutory separation criteria are met. Until then, an outdated will may still create unintended consequences.
The safest approach is to review your will after any marriage, separation, divorce, birth, adoption or significant change in your financial circumstances.
Mistake #3: DIY or Improperly Executed Wills
Template wills and DIY kits are widely available, but Ontario has strict formal requirements for a valid will: it must be in writing, signed by the testator, and signed in the presence of two witnesses who are also present at the same time. It’s also good practice for each witness to sign an affidavit of execution at the time of signing, confirming they watched the testator sign the will and that the formalities were followed. This affidavit isn’t required to make the will valid, but without one, the estate trustee may later need to track down a witness, sometimes years afterward, to swear to the circumstances of signing before the will can be probated.
If a DIY will doesn’t meet these formal requirements, it isn’t automatically thrown out, but fixing the problem is neither quick nor cheap. Since January 1, 2022, section 21.1 of the SLRA gives the Superior Court of Justice a limited “curative” power to validate a document that doesn’t meet these formalities, provided the court is satisfied it reflects the deceased’s genuine testamentary intentions. Getting there means an application to the court, often contested by family members, which can take months and cost far more in legal fees than a properly drafted will would have cost in the first place. Courts have granted this relief in some cases, but it remains a discretionary remedy decided after death, not a guarantee. It’s far better, and far less costly, to have a will properly drafted and executed from the start than to gamble on a court fixing it later.
Mistake #4: Failing to Create or Update Powers of Attorney
Estate planning isn’t only about what happens after death; it also covers incapacity during your lifetime. Under the Substitute Decisions Act, 1992, Ontario allows you to appoint someone to manage your property (a Continuing Power of Attorney for Property) and someone to make personal care decisions on your behalf (a Power of Attorney for Personal Care) if you become unable to do so yourself.
Without these documents in place, a family member who needs to manage your finances or make care decisions during a period of incapacity may have to apply to the court for guardianship, a process that is slower, more expensive, and more stressful than having the right documents prepared in advance. In some cases, the Public Guardian and Trustee may become involved by default. A properly drafted power of attorney document in Ontario avoids this entirely and ensures the person you actually trust is the one making decisions.
Mistake #5: Overlooking Beneficiary Designations and Joint Ownership
Not everything you own passes through your will. RRSPs, RRIFs, TFSAs, and life insurance policies with named beneficiaries may pass directly to those beneficiaries, outside of your estate. Similarly, property held in joint tenancy with a right of survivorship passes to the surviving joint owner.
This becomes a problem when these designations are outdated (naming a former spouse, for example) or when they conflict with what your will says. It’s a particularly common issue in multigenerational households, where a parent may add an adult child as a joint owner on a property or account for convenience, without fully considering how that affects the rest of the estate plan or the other beneficiaries’ expectations. A comprehensive estate plan reviews these designations alongside the will, not in isolation.
Mistake #6: Ignoring Probate and Estate Administration Tax
When an estate trustee applies for a Certificate of Appointment of Estate Trustee (commonly called “probate”), the estate is subject to the Estate Administration Tax (EAT). For estates where an estate certificate is applied for on or after January 1, 2020, the first $50,000 is exempt from Estate Administration Tax. The tax is then $15 for every $1,000, or part thereof, above $50,000. For a $1 million estate, that works out to $14,250.
Only assets that pass through the will (the “probatable estate”) are subject to this tax. Thoughtful planning around joint ownership, beneficiary designations, and trusts can reduce the size of the probatable estate and the resulting tax, but this needs to be balanced carefully against other goals, since some probate-avoidance strategies can create unintended tax or family consequences of their own.
Business owners have an additional planning tool available: a “multiple wills” strategy, using a primary will for assets that require probate (such as real estate) and a secondary will for assets that generally don’t, such as shares in a private corporation. Because only the primary will needs to be probated, assets covered by the secondary will can pass to beneficiaries without being subject to the Estate Administration Tax. This structure needs to be set up carefully and in advance, since it depends on how the wills are drafted and which assets are assigned to each one.
Mistake #7: Choosing the Wrong Executor or Estate Trustee
Your executor (called an “estate trustee” in Ontario) is responsible for gathering assets, paying debts and taxes, and distributing the estate according to your will. Naming the wrong person (someone in poor health, someone in conflict with other beneficiaries, someone living far away, or simply someone unwilling to take on the administrative burden) can slow down administration and create friction at an already difficult time for your family. This decision deserves as much thought as the distribution of assets itself.
Another common oversight is naming only one executor and no alternate. If the named executor has died, is unable to act, or simply doesn’t want the role by the time it’s needed, someone else will have to apply to the court to be formally appointed in their place before they can administer the estate. That process typically requires going through probate, even in situations where a willing, available executor named in the will might otherwise have been able to handle a smaller estate more informally. Naming at least one alternate executor helps avoid this altogether.
How a Wills & Estate Lawyer Can Help
Each of the mistakes above is avoidable with proper legal guidance. A wills & estate lawyer helps by:
-
- Drafting a valid, enforceable will that meets Ontario’s formal requirements and clearly reflects your wishes
- Coordinating your will with your powers of attorney, beneficiary designations, and asset ownership, so the full estate plan works together rather than at cross-purposes
- Identifying opportunities to reduce probate and tax exposure without creating new legal or family risks
- Reviewing and updating your plan after marriage, separation, divorce, or other major life changes
- Helping you choose the right executor
- Structuring the plan to minimize the potential for family disputes
An outdated, incomplete, or improperly executed estate plan doesn’t just risk complications after you’re gone; it can leave your family dealing with unnecessary legal costs, delays, and conflict during an already difficult time. Working with a lawyer to build a proper plan now is one of the most protective steps you can take for the people you care about.
Frequently Asked Questions
What happens if you die without a will in Ontario?
Your estate is distributed according to Ontario’s intestacy rules under Part II of the Succession Law Reform Act, not according to your personal wishes. A spouse and children may share the estate according to a fixed formula, and common-law partners have no automatic entitlement.
Does getting married cancel my old will in Ontario?
No, not anymore. Since January 1, 2022, marriage no longer automatically revokes an existing will in Ontario. This means it’s especially important to review your will after marriage, since an old will may still be in effect and may not reflect your current wishes.
Do I need a lawyer to write a will in Ontario?
It isn’t legally required, but Ontario has strict execution requirements for a valid will, and mistakes in a DIY will can lead to it being challenged or invalidated after death. A lawyer helps ensure your will is valid, clearly drafted, and coordinated with the rest of your estate plan.
How often should I update my will?
As a general rule, review your will every few years, and always after a marriage, separation, divorce, birth or adoption of a child, or a significant change in your assets.
What’s the difference between a will and a power of attorney?
A will governs the distribution of your estate after death. A power of attorney allows someone you appoint to manage your property or make personal care decisions on your behalf while you’re alive but unable to do so yourself.
How can I work with an estate planning lawyer near me?
If you’re looking for an estate planning lawyer near you, a local wills and estates lawyer can review your assets, family circumstances, will and powers of attorney to help create a comprehensive estate plan. GS Brar Law provides estate planning services in Brampton and across Ontario.
If you’re ready to create an estate plan or review an existing will, the Wills & Estate Planning at GS Brar team is here to help. Contact GS Brar Law at 1-905-291-3297 to book a consultation.
Sources Used
- Succession Law Reform Act, RSO 1990, c S.26, Parts I & II, ss. 4, 21.1, 44-45 (ontario.ca e-Laws)
- Substitute Decisions Act, 1992, SO 1992, c 30
- Accelerating Access to Justice Act, 2021 (Bill 245), amendments in force January 1, 2022
- Ontario Regulation 54/95, as amended by O. Reg 121/21, preferential share amount
- Estate Administration Tax Act, 1998, and ontario.ca, Estate Administration Tax rates
- Ontario Bar Association / case commentary on s. 21.1 curative provision (e.g., Re: O’Neill Estate, Cruz)
Note for review before publishing: All dollar figures (preferential share, EAT rate) and statutory section numbers above should be cross-checked against the current consolidated statutes on ontario.ca immediately before publication, since these amounts and provisions are subject to further legislative change.
