Wills and Estate Basics in Canada: What You Need to Know

A will is the legal document through which you say who receives your estate, who carries out your wishes, and, if you have young children, who you would want to raise them. Without one, the province decides those things for you, often in ways that differ from what you would have chosen. Every adult with assets, dependents, or specific wishes has good reason to have a properly made, current will. This page introduces the basics so you can approach those conversations with a notary or lawyer knowing the right questions to ask.

What a Will Does

A will is a legal document that expresses your wishes for what should happen to your estate after your death. It does several things at once. It tells the people administering your estate, and ultimately the courts, if necessary, who you want to receive your assets and in what shares. It names the person responsible for carrying out those wishes: called the executor in common-law provinces and the liquidator in Quebec. And if you have minor children, a will is generally the place where you name a guardian. The person you would want to raise your children if you are no longer there.

A will also allows you to make gifts to specific people or organizations, set conditions on inheritances, and structure the distribution in ways that reflect your actual relationships and intentions, including relationships, such as those with a common-law partner or close friend, that the province's default rules might not reflect at all.

What a will cannot do is equally worth noting. It does not govern assets that pass outside the estate. Notably, life insurance proceeds paid to a named beneficiary and jointly held property that passes by right of survivorship. Those assets have their own mechanisms, discussed below, and a complete estate plan coordinates the will with those mechanisms rather than treating them in isolation.

What Happens Without a Will

Dying without a valid will is called dying intestate. When it happens, the province's intestacy rules determine who receives the estate and in what proportions. Those rules are fixed by statute; they do not ask what the person would have wanted, they apply a predetermined formula based on legal relationships.

The result can differ substantially from what most people would have intended. Common-law partners are often not included in intestacy rules, or receive less than a married spouse would. The rules vary by province, and in some cases a long-term common-law partner could receive nothing without a will. Children may receive shares that complicate asset management if they are minors. Charitable intentions are lost entirely, because the estate cannot know them. The person chosen to administer the estate may not be the one the deceased would have wanted. And the process can be slower, more complicated, and more costly than with a well-drafted will.

There is also the question of minor children. A will is generally where a parent names a guardian. Without that expression of wishes, a court will decide who raises the children, without the guidance the parent could have provided. This alone is often the most compelling reason for parents of young children to have a will in place.

Types of Wills, With Special Attention to Quebec

The formal requirements for a valid will, and the practical implications of different types, vary significantly between Quebec and other Canadian provinces. This is one of the areas where the province matters most.

In Quebec: Civil Law Rules Apply. Quebec estate law is governed by the Civil Code of Quebec, not by common law, and the terminology and procedures differ accordingly.

The standard form of will in Quebec is the notarial will (testament notarié), made before a notary and a witness. It is kept in the notary's custody, registered in the Registre des dispositions testamentaires et de mandats, and requires no probate (homologation) after the testator's death. This makes it generally the simplest to administer at the time of death: the liquidator can act on it without a court process. For most Quebec residents planning their estate, a notarial will is the preferred and recommended form, though the choice should be made with a notary who can advise based on the specific situation.

Quebec also recognizes a holograph will (testament olographe), which must be entirely handwritten and signed by the testator, with no witnesses or notary required. While it may be valid, a holograph will must be probated (verified by a court or notary) after death, and its absence from any registry can make it hard to find. It is generally not the preferred form for significant estates.

A third form, the will made before witnesses (testament devant témoins), requires the testator's signature and two witnesses, and like the holograph will, must be probated.

In other provinces: Common Law Rules Apply. Outside Quebec, wills are governed by provincial legislation based on common law, and the requirements and terminology differ from Quebec. A properly witnessed will is the standard form, generally signed by the testator in the presence of two witnesses, who also sign. Depending on the province and the assets involved, the estate may need to go through probate, a court-supervised process that confirms the will's validity and the executor's authority to act. Probate fees and timelines vary by province. Some provinces also recognize holograph wills (entirely handwritten and signed by the testator, without witnesses), and the details and implications vary by jurisdiction.

Planning for Incapacity, Not Just Death

A will takes effect at death, but a complete estate plan also addresses incapacity: what happens if you are alive but unable to manage your own affairs due to illness, injury, or cognitive decline.

In Quebec, the primary tool for this is the mandate in case of incapacity (mandat en cas d'inaptitude, sometimes called a protection mandate), a document in which you designate a person to manage your affairs, personal, financial, or both, if you become incapacitated. A mandate made before a notary is generally recommended; it must be homologated (ratified by a court) before it takes effect. Without a mandate, a court process is needed to appoint a protective supervisor, which can be slower, more costly, and may result in someone being appointed who was not the person's preference.

In other provinces, the comparable tools are generally a power of attorney for property (authorizing someone to manage financial affairs) and a personal directive or representation agreement covering healthcare decisions. The specific documents, their names, and their requirements vary by province.

These documents are companions to a will rather than alternatives, and together they form the foundation of a plan that addresses both incapacity during life and the distribution of the estate at death. A notary or lawyer in your province can advise on which documents are appropriate for your situation.

How Life Insurance Fits In

Life insurance interacts with the estate in a way worth understanding, because it can be one of the most important estate-planning tools available, but only when it is coordinated with the overall plan.

When a life insurance policy has a named beneficiary other than the estate, the death benefit generally passes directly to that beneficiary outside the estate. It does not go through probate, is generally not subject to estate debts, and reaches the beneficiary more quickly and privately than assets passing through the estate. This makes life insurance with a named beneficiary a valuable tool for ensuring that specific people receive funds promptly after death.

However, this only works as intended when the beneficiary designation and the will are coordinated. If the will makes a specific gift that the estate cannot fund because most of the assets have passed to insurance beneficiaries outside the estate, there can be a mismatch. If the beneficiary designation is outdated, naming an ex-spouse, a deceased person, or simply the wrong person given changes in the family, the funds go where the designation says, regardless of what the will intends. Keeping both the will and all beneficiary designations current, and reviewing them together with the same professional team, is what ensures they work as a coherent plan.

For incorporated business owners, the corporate-owned life insurance page discusses how the death benefit and the Capital Dividend Account interact. Connecting the corporate insurance structure to the personal estate. See Life Insurance, Tax, and Estate Planning and Corporate-Owned Life Insurance for more.

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What probate costs, and what Quebec has instead

Probate is described above as a process. It is also a bill, and its size is provincial. Ontario charges an estate administration tax calculated on the value of the property the estate holds, with no ceiling. British Columbia charges a probate fee on much the same basis. Alberta charges a court fee that stops rising once the estate passes a set size, so estates of identical value can pay very different amounts. Ask a lawyer in your province what yours would pay today.

Quebec charges nothing of the kind. It has verification instead, and verification attaches to the form of the will rather than to the size of the estate. A holograph will, or a will made before witnesses, must be verified after death by the Superior Court or by a notary before the liquidator can act on it. A notarial will requires none of that. The cost is a professional fee, not a share of what the estate is worth. In the common law provinces, property passing outside the estate, including a death benefit paid to a named beneficiary, is generally left out of the value the charge is calculated on.

What the executor or liquidator carries personally

Naming someone your executor, or your liquidator in Quebec, hands them an exposure nobody mentions. Under the Income Tax Act, a legal representative who distributes the estate before the Canada Revenue Agency has confirmed that everything owing has been paid or secured can be held personally responsible for what remains unpaid, up to the value of what was handed out. That confirmation is the clearance certificate. In Quebec the liquidator needs the equivalent authorization from Revenu Québec as well. A beneficiary pressing for money early is asking that person to take a risk with their own. Tell whoever you name what you are asking of them.

Questions people ask

Frequently Asked Questions

Continue Learning

See Beneficiary Designations for how to structure insurance and plan beneficiaries to work with your estate. For the insurance and tax dimensions, see Life Insurance, Tax, and Estate Planning and Corporate-Owned Life Insurance. Explore Business Succession Planning if you own an incorporated business. Return to the Succession Planning overview.