Understanding the Will and Probate Process

After the initial rush of activity following the death, the executor’s focus turns to the will and the legal process that may be required to administer the estate. This chapter explains how to interpret the will, what to do if there is no will, and how the probate process works across Canada. It also covers the concept of intestacy (dying without a will) and the differences in procedure between provinces, including special considerations under Quebec’s civil law system.

Reading and Understanding the Will

Once you have the will in hand, read it carefully, ideally more than once, to fully understand the deceased’s instructions and intentions. As executor, your job is to faithfully carry out these wishes within the bounds of the law. Pay close attention to the following key elements.

1. Executor Appointment

Who is named as executor (also called "estate trustee" or "personal representative")? You may be appointed alone or alongside co-executors, and there may be alternate executors named in case the primary is unable or unwilling to act.

• Confirm that all named executors are aware of their appointment.

• If multiple executors are appointed, you will generally need to make decisions jointly (often unanimously, unless the will states otherwise).

• If a named executor has died or declines to act, check for an alternate. If none is named, someone may need to apply to court for appointment.

2. Beneficiaries and Distribution

Identify the beneficiaries, including:

• Specific legatees: those receiving individual items or sums of money ("I leave my ring to my niece")

• Residuary beneficiaries: those entitled to the remainder of the estate after debts, taxes, and specific gifts are satisfied

• Contingent beneficiaries: those who inherit only if another person is unable to (for example, "if my son predeceases me, his share goes to his children")

3. Specific Gifts and Bequests

Carefully review any specific bequests:

• These items should be preserved (not sold to cover debts) unless absolutely necessary.

• If a specifically gifted item is no longer part of the estate (for example, a car was sold before death), the gift may have adeemed (failed), unless the will provides otherwise.

4. Funeral or Burial Instructions

Carry out any funeral, cremation, or memorial instructions if they are included in the will.

5. Executor Powers

Most wills grant executors powers to:

• Sell or transfer assets

• Invest estate funds

• Hire professional advisors

• Make discretionary decisions

Understanding these powers will help you determine what you can do without additional court approval.

6. Testamentary Trusts

Some wills establish trusts, such as:

• For minor or disabled beneficiaries

• For a surviving spouse

• For ongoing financial support or tax planning

If a trust is created:

• Note the assets to be placed in trust, the terms of administration, and the named trustee(s).

• Often (but not always) the executor and trustee are the same person or persons.

• These assets will not be distributed outright but rather administered over time according to the terms of the will.

7. Conditional Gifts

Check for any conditions attached to gifts, such as "my daughter receives $10,000 upon graduation from university." These must be followed if they are legally valid. If the condition is vague or questionable, seek legal advice before proceeding.

8. Executor Compensation Clause

The will may specify a compensation structure for the executor: a fixed amount, a percentage of the estate, or a general entitlement to "reasonable fees." These distinctions will become relevant when you later apply for compensation.

9. Letters of Instruction or Informal Notes

Sometimes the deceased leaves a non-binding letter of wishes to guide the executor, for example, a list of people to receive personal effects, preferences for handling digital assets, or thoughts on charitable gifts. While not legally enforceable, these can provide helpful context when exercising discretion.

10. Multiple Wills

Some individuals prepare more than one will. For example:

• A Primary Will for assets that require probate (such as real estate and bank accounts)

• A Secondary Will for assets that do not (such as private company shares and personal effects)

This strategy is common in Ontario and increasingly used in British Columbia to reduce probate fees. These wills typically:

• Are drafted to coexist with, not revoke, one another

• Each govern specific classes of assets

If you find multiple wills, do not assume one revokes the other. Seek legal advice to ensure the correct will or wills are submitted for probate and followed properly.

11. Codicils (Amendments)

A codicil is a legal amendment to a will. It may:

• Change executor appointments

• Modify or revoke specific gifts

• Clarify or correct earlier provisions

Treat codicils as part of the will. Read them in the context of the original document and submit both for probate if required.

12. If the Will Is Unclear or Only a Copy Is Found

• If any part of the will is ambiguous, or if you find conflicting documents, seek legal advice. Courts can interpret unclear language through a process called construction.

• If only a copy of the will is found and the original cannot be located, courts may presume the original was revoked unless there is clear evidence to the contrary. Probating a copy will require legal assistance and additional steps, including formal notice to interested parties.

Final tip: Keep the original will in a secure place. You will need it for probate (if required), and it may be difficult or impossible to proceed without it.

Is the Will Valid? Understanding Formal Requirements Across Canada

To be legally valid in common law provinces and territories (that is, everywhere outside of Quebec), a will generally must meet the following criteria:

• The testator was of legal age. This is usually 18 or 19, depending on the province or territory, but exceptions exist, such as for members of the armed forces or married individuals.

• The testator had testamentary capacity at the time of making the will; that is, they understood the nature and consequences of making a will and the extent of their property and relationships.

• The will was properly witnessed. The testator signed in the presence of two adult witnesses, who also signed in each other’s and the testator’s presence.

1. Holographic Wills (Handwritten Wills)

A holographic will is one written entirely in the testator’s handwriting and signed by them, without witnesses. These are legally recognized in many provinces and territories, including:

• Ontario

• Alberta

• Saskatchewan

• Manitoba

• Newfoundland and Labrador

• Yukon

• Northwest Territories

However, holographic wills are not valid in British Columbia or Prince Edward Island, unless the court exercises curative powers.

2. Remote or Modified Execution (COVID-19 and Emergency Rules)

During the COVID-19 pandemic, many jurisdictions temporarily permitted remote witnessing (for example, over video conference) or relaxed certain formalities. Some provinces have since made these rules permanent or extended them, while others have not. If a will was signed during this period, check the date and place of execution, check the dates and current status of the exceptions, and seek legal advice if you are unsure whether the formalities were met. Make no assumptions.

Current status of remote witnessing rules (as of 2026):

In response to the modernization of legal services, most major common law provinces have moved from temporary emergency orders to permanent legislation permitting the remote execution of estate planning documents.

• British Columbia: Permanent. Electronic witnessing via video conference is permitted under amendments to the Wills, Estates and Succession Act (WESA). Any two valid witnesses may serve; unlike some other provinces, no lawyer is required. Counterparts may be used, provided the wills are properly assembled.

• Ontario: Permanent. Virtual witnessing remains available under the Succession Law Reform Act. At least one witness must be a licensee of the Law Society of Ontario (a lawyer or paralegal) when signing remotely.

• Alberta: Permanent. The Wills and Succession Act now allows remote witnessing via video conference. To be valid, one of the two witnesses must be an active member of the Law Society of Alberta.

• Saskatchewan: Permanent. The province has enacted permanent provisions in The Wills Act allowing for remote witnessing of wills. If a will is witnessed via video conference, at least one of the two witnesses must be a lawyer.

• Manitoba: Permanent. Remote witnessing is permitted under The Wills Act and the associated Remote Witnessing Regulation. At least one witness must be a Manitoba lawyer.

• Other jurisdictions: Rules in the Atlantic provinces and territories vary widely. Some jurisdictions may still require traditional in-person witnessing or have specific court-ordered validation processes. Always verify current standing with local counsel.

If a will was executed during the pandemic period using remote witnessing, confirm that the execution method was valid under the rules in effect at that time and place.

3. What if the Will Appears Defective?

If the will seems improperly executed (for example, only one witness signed), it may not meet the formal legal requirements for validity. However, some provinces, including British Columbia, Alberta, Ontario, and Manitoba, have "substantial compliance" or curative provisions. These allow a court to validate a will that does not strictly meet formal requirements, provided that the deceased’s intentions are clear.

As executor, you are not expected to prove validity; this is the role of the probate process. However, you should flag any irregularities and seek legal advice where appropriate.

4. Wills from Other Jurisdictions

A will made in another province or country may still be valid in the jurisdiction where the person died, provided it meets the legal requirements of the place where it was executed. Canadian courts generally apply conflict of laws rules (rules to determine which jurisdiction’s laws apply in a case of conflict) to recognize such wills, but there are exceptions. If a jurisdictional question arises, consult a lawyer with cross-jurisdictional experience.

5. Special Considerations in Quebec

Quebec operates under a civil law system, with distinct rules and terminology. There are three types of valid wills in Quebec:

Notarial Will

• Prepared by a notary, signed before the notary and a witness

• Does not require probate: it is already an authentic legal document

• Easily identified: usually a bound, formal document signed and sealed in the notary’s register

Holograph Will

• Entirely handwritten and signed by the testator

• Requires court or notarial verification before it can be administered

Will Made in the Presence of Witnesses

• Similar to common law provinces: signed by the testator before two witnesses

• Also requires verification, if not done by a notary

Tip: If the will in Quebec is not notarial, expect a formal verification process, either through the court or a notary. This step serves the same function as probate elsewhere.

Note: In Quebec, the executor is called a liquidator. Their role is similar to that of the executor in other provinces but is subject to specific civil law duties, such as:

• Preparing and publishing a formal inventory of the estate

• Providing notice to heirs, creditors, and Revenu Québec

• Following the procedural rules set out in the Civil Code of Quebec