Most people know they should have a will. Fewer actually have one. And even fewer have a complete estate plan.
I understand why. Estate planning sounds complicated. It can feel like something you will get to eventually. But “eventually” has a way of arriving without warning. A sudden illness. An unexpected accident. A diagnosis that changes everything.
I’ve spent years helping families in Peterborough and the Kawarthas put their affairs in order. Some come to me proactively, while things are calm. Others come in a crisis, after something has gone wrong.
I can tell you from experience: the families who plan ahead have a much easier time of it.
Indeed, it’s hard for me to overstate just how much anxiety, grief, and unnecessary expense can be avoided by having a simple, solid estate plan. Absolutely every couple in Ontario should have their wills and powers of attorney in order. No exceptions.
It doesn’t need to take a lot of time to create your estate plan. And it doesn’t need to cost a lot. But it can protect you and your loved ones. And every Ontario family should know the basics.
This post covers the basics. Think of it as a starting point, not the final word. (If you’re ready to start on your estate plan, feel free to reach out to our experienced team here.)
What Is an Estate Plan?
An estate plan is a set of legal documents and decisions that answer three questions. First, who will manage your property if you become unable to do so? Second, who will make your personal care decisions if you are unable to do so? Third, what happens to your property and money when you die, and who takes care of your children if you die?
Powers of attorney answer the first and second. A will answers the third question and provides guardianship guidelines.
Together, these documents form the core of an estate plan. Some families also need trusts, beneficiary designations, or business succession plans. But for most people, a will and two powers of attorney are the foundation.
Why You Need a Will
If you die without a will in Ontario, the province decides what happens to your estate. The rules are set out in the Succession Law Reform Act. They are formulaic. They do not account for your relationships, your wishes, or your circumstances.
For example, if you are married with children, your spouse receives the first $350,000 of your estate. Everything above that amount is split between your spouse and children according to a fixed formula. That may not be what you want.
If you are in a common-law relationship, the situation is even more stark. Common-law partners have no automatic inheritance rights in Ontario. Without a will, your partner could receive nothing.
A will lets you decide. You choose who inherits. You choose who manages your estate (your estate trustee, sometimes called an “executor” or “executrix”). You choose who cares for your minor children. These are decisions that matter too much to leave to a government formula or court decision.
For more detail on what happens without a will, see our blog post: What Happens if You Die Without a Will in Ontario?
The Two Powers of Attorney
A power of attorney is a legal document that gives someone you trust the authority to act on your behalf. In Ontario, there are two types, and you need both. You can learn more in our detailed Powers of Attorney FAQ.
Power of Attorney for Property
This document lets your chosen person (called your “attorney”) manage your financial affairs if you cannot. That includes paying bills, managing bank accounts, handling investments, and dealing with real estate.
A continuing power of attorney for property remains valid even if you become mentally incapable. This is the type most people need. Without one, your family may have to apply to the court to be appointed as your guardian, a process that is expensive, time-consuming, and stressful.
Power of Attorney for Personal Care
This document covers health care and personal decisions. It allows your attorney to make choices about medical treatment, living arrangements, nutrition, and end-of-life care on your behalf.
It only takes effect when you are unable to make these decisions yourself, typically when a physician confirms incapacity. The rules governing both types of power of attorney are set out in Ontario’s Substitute Decisions Act.
Many people assume that their spouse automatically has the legal authority to make these decisions. That is not always the case. A power of attorney for personal care removes any ambiguity and ensures that the person you trust is the one making the call.
For a deeper look, read our blog post: Why Every Ontario Adult Needs a Power of Attorney
Common Mistakes I See
After years of estate planning work, certain patterns come up again and again.
Not Updating After Major Life Events
Marriage, divorce, the birth of a child, the purchase of a home, and retirement are all events that should trigger a review of your estate plan. I have seen wills that still name an ex-spouse as beneficiary, simply because no one thought to update them.
It used to be that in Ontario, marriage automatically revoked a prior will unless the will was made in contemplation of that specific marriage. However, that has changed for marriages occurring on or after January 1, 2022. If you were married on or after this date, your existing will remains valid.
If you were married before January 1, 2022, the old law still applies. In that case, your prior will was likely revoked at the time of marriage unless it was made in contemplation of it.
Even if your old will does not mention your new spouse, they may still have legal claims to your estate. Under the Ontario Family Law Act, a surviving spouse can often choose to “elect” against the will to receive an equalization of family property, similar to what they would receive in a divorce.
Forgetting About Beneficiary Designations
Your RRSP, RRIF, TFSA, and life insurance policies each have their own beneficiary designations. These designations override your will. If your will says one thing and your beneficiary designation says another, the designation wins. It is important to review these alongside your will to make sure everything is consistent.
Not Discussing the Plan With Family
An estate plan works best when the people involved know what to expect. That does not mean you need to share every detail. But letting your estate trustee know they have been named, telling your attorney for personal care about your health preferences, and having honest conversations with your family about your intentions can prevent a great deal of conflict later.
When Should You Start?
Now. If you are over eighteen and you own anything, you need at least a basic will and two powers of attorney. If you have children, property, a business, or a blended family, the need is even more pressing.
Estate planning is not about age or wealth. It is about making sure the people you love are protected and that your wishes are honoured. The Government of Ontario’s estate planning guide provides a helpful overview of the basics.
If you have questions or would like to discuss your own estate plan, I am happy to help. You can reach Bussey Ainsworth at 705-749-0628 or book a consultation online.
You might also find these resources helpful:
- Wills and Estate Planning FAQ
- Powers of Attorney FAQ
- Powers of Attorney practice page
- What Happens if You Die Without a Will in Ontario?
Barry W. Bussey is the principal lawyer at Bussey Ainsworth in Peterborough, Ontario. He helps families across the Peterborough and Kawarthas region with wills, estates, powers of attorney, and estate planning.
This article is for general information only and does not constitute legal advice. Every situation is unique. Please consult with a lawyer before making decisions about your estate plan.
