What happens if I pass away without a will?
If a person dies without a will that person will have died “intestate”, meaning that the person who passed away gave up all of his or her power and freedom to choose beneficiaries, how much of the estate each beneficiary would obtain, when the beneficiaries would obtain their inheritance, etc. If a person dies intestate, one must look at the Succession Law Reform Act to determine who gets what.
In the event that a person passes away intestate and without issue, meaning without children or grandchildren, and the spouse by marriage is still living, the spouse will be given the entire estate.
If the person dies intestate and has issue, the spouse will generally be entitled to the Preferential Share which is prescribed by law and which is currently the first $200,000.00 of the estate. The balance of the estate will be divided between the married spouse and the deceased’s issue, depending on how many issue there are. If there is one married spouse and one issue, then the remainder of the estate will be divided 50/50. If there is more than one issue the married spouse will get 1/3 and the issue will equally share 2/3 of the remainder of the estate.
In the event that the beneficiaries are under eighteen years old, the court will hold onto the inheritance until the issues' eighteenth birthday. In order for your surviving spouse to obtain the right to control your issues' inheritance instead of the Court, he or she would be required to make an application to the Court in order to be appointed as the Guardian of the Property. In the event that the inheritance is needed by the living spouse in order to care for the issues, then it is possible to submit an application for prepayment to be made by the Court.
In the event that a person passes away intestate, and does not have any surviving spouse by marriage or surviving issue, the estate will be given to the next of kin.
If there is no next of kin or any individual of blood relation, the estate will become the property of the government of Ontario.
In the event that a person is in a common law relationship and dies intestate, the surviving common law spouse does not have a right to the estate.
In contrast, if one has a proper will, is will be enforced at the time of death. The deceased can, in the will, appoint an Estate Trustee or several Estate Trustees, which gives the individual of your choosing the power to manage all of your affairs immediately following your death. Without naming an Estate Trustee, someone, usually your next of kin, will ask the Court to be appointed as Administrator. They will have to obtain a Certificate of Appointment of Estate Trustee Without a Will.
Spouses who are married have the right to bring an application for an “equalization” of family property instead of taking the share that they were prescribed, even when there is a will that is being implemented. However, strict limitation periods apply and one should immediately consult with a lawyer.
For more information on the services we provide relating to wills and the distribution of estates if one dies intestate, contact Krol & Krol at 905.707.3370.
