Area of Law: Wills, Estates and Powers of Attorney
Answer # 150
What happens if you die without a Will? (Intestate)Region: Ontario Answer # 150
If you die without a Will, the law says that you have died “intestate,” which means that you left no instructions as to how your property is to be divided and distributed. In these circumstances, the Ontario Succession Law Reform Act governs how your property will be distributed to your surviving relatives. Even if you want your property divided according to provincial law, you should still have a Will because it will reduce delays and expenses involved in wrapping up your affairs.
How your property will be distributed
According to the Act, if you die without a Will, your property will be distributed as follows:
1) If you have a spouse, but no children:
Your spouse inherits everything. This only applies to legally married spouses. Common-law spouses do not automatically receive anything if you die without a Will.
2) If you have a spouse and children:
Your spouse first takes a preferential share up-to $200,000 worth of assets. Anything left over is called the residue. If anything is left over, it is divided between your spouse and your children as follows: If there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.
3) If you have children, but no spouse:
The children each inherit an equal portion of your estate. If any of them have died, that child’s descendants (i.e. the deceased person’s grandchildren) will inherit their share.
4) If you have no spouse and no children:
Your parents inherit your entire estate.
5) If you have no spouse, no children, and no parents:
Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.
6) If you also have no brothers and sisters:
Your nieces and nephews each inherit an equal portion of your estate.
7) If you have no nieces and nephews:
All other next of kin inherit an equal portion of your estate.
8) If you have no living next of kin:
Your estate goes to the Ontario government.
Who is considered a relative?
It is important to note that when someone dies without a Will, only blood relatives, including children born outside of a marriage, or legally adopted children can inherit. Half-blood relatives will share equally with whole-blood relatives.
Problems that arise when someone dies without a Will
Dying without a Will can create problems for those you leave behind. First, your property will be divided according to the law, which may not be the same as how you would have divided it. Second, there will be extra time delays and expenses involved in wrapping up your affairs, and the court will have to appoint someone to act as your personal representative. The general rule is that your closest relative has the right to be appointed as your personal representative. They are appointed by applying to the court for a Certificate of Appointment of Estate Trustee Without a Will. This gives authority to the personal representative to manage and distribute the estate of the deceased.
As of January 1, 2016, ‘proof of death” must be filed when applying for a Certificate of Appointment of Estate Trustee (with or without a Will). This could be: a death certificate issued by the Registrar General; a Funeral Director’s proof of death certificate; or, an order made under the Declarations of Death Act, 2002 declaring that the person has died.
For more information about Wills, visit the Ministry of the Attorney General website.
Getting the legal help you need
Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
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