What happens without a will, when to update your documents and how a Henson trust can help a family member with a disability
If you die without a valid will in Ontario, the law decides who inherits your estate. Your spouse may not receive everything, and a common-law partner has no automatic right to inherit under Ontario’s intestacy rules. A will lets you plan for the people you want to provide for. Powers of attorney address a different concern: who can make decisions for you during your lifetime.
Whether you live in Toronto, North York or elsewhere in Ontario, these documents deserve attention before a family emergency makes them urgent.
What happens if I die without a will in Ontario
Dying without a valid will is called dying “intestate.” Ontario’s Succession Law Reform Act sets out who receives the estate after debts and other estate obligations are addressed. Someone will generally need to apply to the court for authority to administer it. [1, 3]
The basic inheritance rules are:
- Married spouse and no children or other descendants: the spouse generally receives the estate.
- Married spouse and one child: the spouse receives the first $350,000, called the preferential share, and half the balance. The child receives the other half.
- Married spouse and two or more children: the spouse receives the first $350,000 and one-third of the balance. The children share the remaining two-thirds.
- No qualifying spouse: the estate generally passes to children or their descendants, then to other relatives in the order set by law.
The $350,000 preferential share applies to deaths on or after March 1, 2021. If the net estate is smaller, a qualifying spouse generally receives it all. Special rules apply to separated spouses and to descendants of children who died earlier. [1, 2]
Does a common law spouse inherit without a will
A common-law partner has no automatic share under Ontario’s intestacy rules, even after a long relationship. They may have a dependant’s support claim or other rights, but those are separate from automatic inheritance. [1]
These rules concern property forming part of the estate. Joint ownership, beneficiary designations and a married spouse’s family property rights can affect the outcome. Do not assume that either a will or the intestacy rules determine what happens to every asset. [4]
Why do I need a will
A will gives your family clear instructions and allows you to choose an estate trustee, commonly called an executor. It also lets you identify beneficiaries and alternates if someone dies before you. [4]
For parents, a will can establish trusts to manage an inheritance for children and specify when they receive it. It can also record your choice of who should care for minor children, subject to Ontario’s rules and any necessary court decision. Naming someone does not guarantee a permanent appointment. [5]
A carefully prepared will can also address a blended family, a business interest, charitable gifts or the needs of a beneficiary with a disability. It cannot prevent every dispute or eliminate all taxes, but it can reduce uncertainty about what you intended.
Do I need a lawyer to make a last will and testament
Ontario law does not require you to hire a lawyer to make a will. However, the will must meet the applicable legal requirements. A conventional will generally requires your signature and two witnesses, with rules governing how everyone signs. Ontario also recognizes certain handwritten wills, known as holograph wills. [1, 4]
The value of legal advice goes beyond filling in names. A lawyer can identify problems with the proposed distribution, explain obligations to dependants and help coordinate the will with property ownership and beneficiary designations. Advice is particularly useful for blended families, business owners, foreign assets, disability planning or a likely family disagreement.
A will kit may appear straightforward while leaving important questions unanswered. Who inherits if a beneficiary dies first? Who manages a child’s share? What happens if your chosen executor cannot act? Resolving those questions now can save your family difficulty later.
How often should I review or update my will
A sensible practice is to review your will every three to five years and after a major life change. That is a practical guideline, not a legal expiry date. A review may confirm that your existing will still works.
Arrange an earlier review if you marry, separate or divorce; have a child or grandchild; lose a beneficiary or executor; buy or sell a business; move to another jurisdiction; or experience a significant change in assets or a beneficiary’s needs.
Marriage on or after January 1, 2022 does not automatically revoke an existing Ontario will. Separation and divorce can affect gifts and appointments, but should never replace a proper review of your estate plan. [1]
Review insurance and registered account beneficiaries at the same time. If changes are needed, use a properly executed new will or codicil rather than simply writing changes on your existing document.
What is a power of attorney and why do I need one
A power of attorney, or POA, authorizes someone to make certain decisions for you while you are alive. The person you appoint is called your “attorney,” but does not have to be a lawyer. A will does not provide this authority. [6]
Continuing power of attorney for property
This document covers financial matters such as banking, bills and property transactions. “Continuing” means the authority can continue if you become mentally incapable. It can take effect immediately unless the document provides otherwise. Your attorney cannot use it to make a will for you. [6, 7]
Power of attorney for personal care
This document covers decisions such as health care, housing, nutrition and personal safety when you are incapable of making the particular decision. You can appoint someone you trust and record wishes to guide them. [6, 7]
What happens if I become incapable without a power of attorney
Your spouse or adult child does not automatically have authority to manage all your finances. A guardianship process may become necessary. For treatment decisions, Ontario has a statutory hierarchy of substitute decision-makers, so the absence of a POA does not always require a court application. Preparing one allows you to choose an eligible person rather than relying on that hierarchy. [7, 8]
The difference in cost and time is significant. A court application to appoint a guardian of property can cost over $10,000 and will take several months to complete. During that time your family may be unable to pay bills, manage investments or deal with your property on your behalf. By comparison, having a continuing power of attorney for property in place costs at most $200.
Do I need a lawyer for a power of attorney
You do not legally need a lawyer, and Ontario provides free forms. Proper signing and eligible witnesses are still required. A lawyer can help with restrictions, replacement attorneys, joint appointments and concerns about misuse of financial authority. [6, 7]
Prepare your POAs while you have the required capacity to understand and grant them. Review them when relationships or circumstances change, and tell your chosen attorneys where the documents are kept. POA authority ends at death; responsibility for the estate then falls to the estate trustee. [7]
What is a Henson trust in Ontario
A Henson trust is a discretionary trust often used to provide for a person with a disability. The trustee decides whether and when to make payments. The beneficiary cannot demand distributions or require the trust to be wound up for their own benefit. This structure can help preserve eligibility for benefits that depend on financial need. [9]
For a beneficiary receiving Ontario Disability Support Program benefits, an outright inheritance may affect eligibility. Under ODSP policy, assets in a properly structured absolute discretionary Henson trust are not treated as the beneficiary’s assets, regardless of the trust’s value. Payments from the trust can still affect benefits, depending on their amount, purpose and the applicable exemptions. [10]
For example, a parent may leave money in a Henson trust for an adult child receiving ODSP. The trustee can consider expenses that improve the child’s quality of life while checking how each payment will be treated. The trust is not a guarantee that every distribution will be exempt.
A Henson trust can be included in a will. Careful drafting, a suitable trustee and replacement trustee, and ongoing advice about benefit rules and tax obligations are essential. Simply labelling an ordinary trust a “Henson trust” does not make it one. [9, 10]
Planning your will and powers of attorney
Start by listing your assets, debts, dependants and existing beneficiary designations. Think about who could administer your estate, manage your finances and make personal care decisions. If someone you want to provide for has a disability, raise that at the outset so the plan addresses their benefits and long-term needs.
An Ontario wills and estates lawyer can help you put these decisions into documents that reflect your family and circumstances.
This article provides general information about Ontario law as of September 25, 2026 and is not legal advice.
Sources for legal review and website links
[1] Succession Law Reform Act, particularly ss. 4, 6, 16, 17, 43.1–47 and Part V
https://www.ontario.ca/laws/statute/90s26
[2] O. Reg. 54/95, preferential share
https://www.ontario.ca/laws/regulation/950054
[3] Ontario, Administering estates
https://www.ontario.ca/page/administering-estates
[4] Ontario, Estate planning and wills
https://www.ontario.ca/page/estate-planning-and-wills
[5] Children’s Law Reform Act, s. 61
https://www.ontario.ca/laws/statute/90c12
[6] Ontario, Make a power of attorney
https://www.ontario.ca/page/make-power-attorney
[7] Substitute Decisions Act, 1992, particularly ss. 7–12 and 45–53
https://www.ontario.ca/laws/statute/92s30
[8] Health Care Consent Act, 1996, s. 20
https://www.ontario.ca/laws/statute/96h02
[9] S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4
https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17473/index.do
[10] ODSP policy directive 4.7, Funds held in trust
https://www.ontario.ca/document/ontario-disability-support-program-policy-directives-income-support/47-funds-held-trust