If I don't have a Will?

What happens if I don’t have a Will? - A review of intestate succession in Ontario

In Ontario, a person who dies without a Will is referred to as “intestate” and the distribution of their estate falls under the intestate rules under the Succession Law Reform Act, 1990. Factors that impact the distribution of the estate include: potential beneficiaries living at the date of death of the deceased, the net value of the estate (the amount after all debts and funeral expenses are paid out), the preferential share (an amount a spouse is entitled to, which is currently set $200,000 in Ontario), and the relationships that the individual has - either legally or through blood relations.

Please note- A “spouse” in the following distribution rules refers to an individual who is legally married. A common law spouse does not have the same legal rights as a legally married spouse under the Succession Law Reform Act. (If you are not legally married but you would like to leave your estate to your common law spouse, the best method in doing so is to ensure you have a Will. For more information, please also see my article regarding the rights a common law partner may have upon the death of their intestate spouse.

If an individual dies intestate, and that individual is married without children, the spouse of the intestate receives the deceased entire estate, absolutely.  An intestate’s spouse also has rights under the Family Law Act, 1990. However, the spouse would have to choose whether to receive under the Succession Law Reform Act or under the Family Law Act, as you cannot receive under both acts - a lawyer should be consulted to assist in making this decision.

If an intestate had a spouse and did have a child, but that child predeceased the intestate, the intestate’s child’s children (the grandchildren) would receive the amount the child would have had he or she been living at the time of the intestate’s death. If there are no grandchildren, it would be treated as if there was no child.

If the intestate has a spouse and children, the distribution is determined based on the net value of the property. If the net value of the property is higher than the preferential share, the spouse receives the $200,000 preferential share outright, and splits any amount over the $200,000 equally with any children of the deceased alive at the time of the death (or any children of predeceased children of the intestate).  If the net value of the estate is under the preferential share ($200,000), the spouse receives the proceeds of the estate absolutely.

If the intestate has no spouse, but has children, the proceeds of the estate are distributed equally between all living children at the time of death of the intestate. Again, if a child predeceased the intestate but has living children (the intestate’s grandchildren), those children would receive the amount that their parent would have had they not died before the intestate.

If the intestate has no spouse, no children, and no living grandchildren, the proceeds of the estate is distributed equally between the parents of the deceased living at the time of death.

If the intestate has no spouse, no children, no grandchildren, and no living parents the proceeds of the estate is distributed equally between the siblings of the intestate living at the time of death. If a sibling predeceased the intestate and has living children, those children would receive the amount that their parent would have had they not died before the intestate.

If the intestate has no spouse, no children, no grandchildren, no parents, and no living siblings, the proceeds of the estate is distributed equally between the nephews and nieces of the intestate living at the time of death. If one of the nephews and nieces predeceased the intestate, their share is split equally between the surviving nephews and nieces equally.

If the intestate has no spouse, no children, no grandchildren, no parents, and no siblings, no living nephews or nieces, the proceeds of the estate is distributed equally between the individuals fitting into the next degree of blood relative living at the time of death, absolutely.

If there are no blood relatives of the intestate, the estate escheats to the Crown- meaning the proceeds of the estate are given to the Crown, Her Majesty the Queen.

It is clear that the distribution of an intestate’s estate can be complicated and convoluted. Not only is the determination of who receives under the estate complex, but the process of properly distributing the estate can also prove to be challenging.

In order to legally act on behalf of an estate, an individual must apply to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee. This application requires, among other things, a renunciation from other potential estate trustees who are entitled in priority to be named as estate trustee, consents from all potential beneficiaries of that individual’s appointment, a valuation of the estate, and an affidavit by the individual applying to become estate trustee swearing their intention to act faithfully when distributing the estate. In addition, a monetary bond filed with the Court could also be required, depending on the situation. These applications generally require the assistance of a lawyer, so if you find yourself in this situation, please contact a lawyer to discuss the option available to you.

This article is a brief overview and generalization of the rules of intestate succession. There are many specific rules and laws that govern this area of law and as such, certain facts and realities impact your situation. If you do not have a Will and would like more information about it before contacting a lawyer, please review my article regarding the basics of why a Will is important.  Please also contact our office and one of our wills and estates lawyers will be happy to answer any questions you may have.

Author:

Rosa Carlino

Wills and Estates Law Contact:

Rosa Carlino
Thunder Bay, Lawyer
Phone: 807.625.6612
Email: cheadles%23com|carlino