What happens if a person dies without leaving a will?

If a person dies without leaving a Will, he is said to die “intestate”.

An intestacy, or partial intestacy, may also occur if:

  • the Will fails to properly dispose of all assets of the deceased;
  • the Will is not valid because it has not been signed and witnessed according to the law;
  • the person making the Will did not have mental capacity to make a Will; or
  • the Will has been poorly drafted and is ambiguous.

Looking after intestate estates is more complicated and expensive than doing so where the Will has been properly prepared. Someone will have to take steps to be appointed as a suitable administrator of the estate appointed by a Court. If no one does, the Public Trustee may be appointed.   This means that the person who administers the estate will not be the same person as would have been chosen if a Will was made. The administrator’s duties involve arranging the funeral, collecting assets, and distributing them after paying any debts and taxes. The administrator must establish the next of kin which may be an expensive and time consuming task depending on who the next of kin are, and where they live.

In Ontario, illegitimate children have same rights as legitimate children in respect of inheritances. The administrator may have to take some steps to determine if there are any illegitimate children, a process which can be time-consuming, expensive and embarrassing.

After the payment of all liabilities, the deceased person’s assets will be distributed according to the rules set out in applicable legislation.

In Ontario, the Succession Law Reform Act sets out these rules. If the deceased person:

  • leaves a spouse but no children or grandchildren, the entire estate goes to the spouse;
  • leaves a spouse and one child, the spouse is entitled to the first $200,000, and the balance of the estate will be divided equally between the spouse and the child;
  • leaves a spouse and more than one child, the spouse is entitled to the first $200,000, and one-third of the balance of the estate will go to the spouse with two-thirds to be divided equally among all the children;
  • leaves only children, the estate will go to the children in equal shares;
  • leaves no spouse, children or grandchildren, the estate will go to the deceased person’s father and mother in equal shares if both are living, but if either of them is dead the estate will go to the other;
  • leaves no spouse, children, grandchildren or parents, the estate will go to the deceased persons’ brothers and sisters in equal shares, and if any brother or sister is dead, the children of the deceased sibling will take the share that would have gone to their parent; and finally,
  • if a person dies and there is no surviving spouse, children, parent, brother, sister, nephew or niece, then the property “shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation”. If a person has no such living next of kin, then generally speaking, the estate goes to the government.

In Ontario, a common law partner is not entitled to receive any of the deceased person’s estate. The Succession Law Reform Act recognizes the entitlement of a legally married spouse. It does not recognize other relationships such as common-law partners. As well, the Act does not entitle a stepchild to receive any part of the estate of the deceased person. If a person wishes to provide for a common law partner or stepchild, he must do so in a Will.

If you die without a Will, you may also miss out on opportunities to reduce taxes and probate fees.

In Ontario, children under the age of 18 cannot receive inherited property directly. Also, a parent or guardian of a minor child cannot accept more than $10,000 on behalf of that child unless they have been given the authority to do so under a judgment, court order, or under a Will.

For all these reasons, there is no doubt that dying without a Will causes many unnecessary problems. These uncertainties and complexities will only increase the delay, effort and expense involved in settling the estate. All of these problems can be prevented with relative ease by taking care of your estate planning during your lifetime.

Our Lawyers

Mihkel Holmberg Kate Watson Peter Math
mihkel@holmbergwatson.ca kate@holmbergwatson.ca peter@holmbergwatson.ca
416.648.8499 647.500.0844 416.274.4752

Need advice? If you need help understanding your responsibilities, contact Mihkel Holmberg or Carla Figliomeni for expert legal advice concerning your Will and estate matters.

This newsletter is produced by the estate lawyers at Holmberg Watson Business & Estate Lawyers. The information in this newsletter is general information only and should not be considered exhaustive or treated by readers as legal advice and ought not be relied upon without further, detailed legal counsel being sought.

© Holmberg Watson Professional Corporation. All rights reserved. 2014

by on June 23, 2013