Dying Intestate or Without a Will

Published on 29 August 2022, 07:22:56 AM

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If you die without a will that details your wishes for any property that you have, this is called dying intestate. This means it will be up to the law to decide how your property should be divided and distributed amongst family members in the event of your death. In particular, the Succession Law Reform Act in Ontario will play a big part in deciding what relatives will receive after your death. While a lot of people want their property to be distributed in line with provincial law, it is still recommended that you create a will. This will avoid the expenses and amount of time it can take to correctly deal with your affairs after your death.

The Succession Law Reform Act

So, how will your property be divided under the Succession Law Reform Act? If you die without a will and you have a spouse with no children, you can expect your spouse to inherit all of the property that you have. However, this will only be the case if you are legally married to your spouse. Being together for a long time does not mean that they will automatically receive all of your property without a will.

If you are legally married to your spouse and you also have children, this will change how your property is distributed. Your spouse will be entitled to what is referred to as a preferential share of your assets, which is up to $200,000. If you have more left over after your death, this is referred to as the residue, which will then be divided between your spouse and your children. For example, if you have one child, the residue will be split in half with the spouse. For a family that has more than one child, the spouse will receive one-third of the residue total, while the rest will be shared equally among the children.

If you do not have a spouse but you have children, your property will be distributed equally when you die without a will. They will receive an equal proportion and if one of the children has died, their share will be inherited by the grandchildren.

For someone who dies without any spouse or children, their property will be inherited by their parents. However, if there are no parents, the entire estate will be divided to the brothers and sisters. It will continue to work down the family tree if these relatives have died, which means your property would then go to nieces and nephews or other next of kin.

If you die without a will and you have no family or living next of kin, your entire estate will go to the Government of Ontario.

Dying Without a Will

A lot of people have property that they wish to leave to certain relatives and if you die without a will, this may not happen. This means that if you do not have a will prepared before you die, it will be up to the law to divide your property and your wishes will be ignored.

In addition, dying intestate means it will take longer to distribute your estate and extra expenses for the courts sorting out your affairs. A personal representative will have to be appointed, which is normally a close relative in order to manage your estate and have it distributed. This will include asking the court for a Certificate of Appointment of Estate Trustee Without a Will. This can be a complicated process, which can take some time.

Another step in the process is to provide ‘proof of death’. This became law on January 1 2016 and now it is necessary when applying for a Certificate of Appointment of Estate Trustee to have a death certificate to distribute the estate. This can include a Registrar General or Funeral Director’s death certificate.