What Happens When a Person Dies Without a Will in Ontario?
Many people put off writing a will, thinking that they have plenty of time to do it later. However, life is unpredictable and you never know when you might pass away. A will is a crucial document which leaves binding instructions for what would happen to your estate should you die, and dying without a will can introduce a few challenges.
According to the Succession Law Reform Act, if you die without a will, you are considered to have died intestate. This means that the law will decide how your assets and debts are handled, based on a fixed formula that may not reflect your wishes or needs. The law will also appoint someone to administer your estate, who may not be the person you would have chosen.
The distribution of your estate depends on whether you have a spouse (within the meaning of the Family Law Act), children, or other relatives.
Here are some scenarios of how your estate will be divided if you die without a will in Ontario:
If you have a spouse and no children, your spouse will inherit your entire estate.
If you have a spouse and one child, your spouse will receive the first $200,000 of your estate (called the preferential share) and the rest will be split equally between your spouse and child.
If you have a spouse and more than one child, your spouse will receive the preferential share and one-third of the rest of your estate. The remaining two-thirds will be divided equally among your children.
If you have no spouse and only children, your estate will be divided equally among your children. If any of your children have died before you, their share will go to their children (your grandchildren).
If you have no spouse and no children, your estate will go to your parents. If both of your parents are deceased, your estate will go to your siblings. If any of your siblings have died before you, their share will go to their children (your nieces and nephews).
If you have no spouse, no children, no parents, no siblings, no nieces and nephews, or any other living relatives, your estate will go to the government of Ontario.
Dying without a will can result in some undesirable consequences for your loved ones. For example:
Your spouse may not receive enough money to maintain their standard of living or pay off debts.
Your common-law partner may not be recognized as your spouse and may not inherit anything from your estate.
Your stepchildren or other dependents may not receive any financial support from your estate.
Your assets may go to relatives that you barely know or do not get along with.
Your assets may be subject to higher taxes and fees than if you had a will.
Your estate may take longer to settle and involve more legal complications than if you had a will.
Another important reason to have a will is to appoint a guardian for your minor children or dependents. If you die without a will, the court will decide who will take care of them, based on their best interests. The court may not choose the person that you would have wanted or that your children are comfortable with. This can cause emotional distress and conflict for your family.
To avoid these problems, it is advisable to make a valid will that expresses your wishes and needs clearly. A valid will must be in writing, signed by you in front of two witnesses who are not beneficiaries or spouses of beneficiaries, and dated. You also name an executor in your will, who is the person that will carry out the instructions in your will and administer your estate.
Making a will can give you peace of mind that your affairs are in order and that your loved ones are taken care of after you die. It can also save them time, money, and stress in dealing with your estate.
Wills and estate planning can be complicated and legal advice relevant to each individual situation is crucial: if you have questions, please contact us to discuss.