KPA Lawyers – July 2, 2021
If you die in Ontario without a will, the law states that you have died Intestate. More simply put, you have not specified how your property is to be divided and distributed. The Ontario Succession Law Reform Act regulates how to distribute assets and pay debts in this situation. However, it is essential to have a will since it will mitigate expenses and delays while ensuring that the probate court honours your final wishes.
In this blog article, KPA Lawyers helps you understand what happens to assets, estate administration, and distributions when passing away without a will in Ontario.
What Happens to My Assets When I Die Intestate?
Probate courts will distribute the first $200,000 of your estate to your spouse if they claim their privilege. This claim is referred to as the Preferential Share. Another option is to declare half of the estate under Ontario’s Family Law Act. An estate planning lawyer will be of assistance in helping the spouse determine the most sensible option.
What Do Probate Courts Do With Assets Above $200,000?
Courts will distribute amounts exceeding $200,000 equitably among spouses and descendants, including children and grandchildren. If you are not married upon passing, then your children will receive inheritance rights. Other first inheritance rights are outlined in intestate laws.
Who Administers An Ontario Estate Without A Will?
In general, a probate court judge will designate someone to administer your estate with you die without a will. They will generally appoint a close family member, such as a spouse, child, sibling, or grandchild, to serve as the Estate Trustee, depending upon the facts and circumstances. The Estate Trustee has the same responsibilities as an executor.
After appointing the Estate Trustee, the selected individual must apply for probate for purposes of:
Purpose 1. Appoint an Estate Trustee
Purpose 2. Confirm the Estate Trustee’s authority
Purpose 3. Accept that the individual died Intestate
Once the probate court confirms the above-referenced items, it will issue a Certificate of Appointment of Estate Trustee Without a Will. The Estate Trustee can then demonstrate their authority over the estate to anyone. This request must be made because it is the document that all banks require before transferring funds from the deceased’s accounts to the Estate Trustee.
Who Administers My Estate If I Have No Relatives?
Regardless of the circumstances, an Estate Trustee cannot act until the court has permitted them to do so. The process can take a substantial amount of time, especially If no one steps forward. If this situation arises, the court will undoubtedly have to appoint a public trustee.
Who Will Inherit My Ontario Estate If I Die Intestate?
Ontario regulates the distribution of your estate if you die intestate. Without a Last Will & Testament, you cannot select who will receive an inheritance, charitable contributions, and other financial gifts. Courts will bequeath your estate to heirs according to intestate laws.
The following individuals will inherit your estate in order of first right:
- If no spouse, then surviving children
- If no children, then surviving grandchildren
- If no children or grandchildren, then surviving grandparents
- If no parents, then surviving brothers and sisters
- If no siblings, then distant relatives
If any heir was alive when their relative died but died before estate distributions, their heirs may receive the share. Only blood relatives, which include children born outside of marriage and legally adopted children, can inherit when a person dies without a will. A half-blood relative shares equally with a full-blood relative.
Do My Children Inherit My Estate If I Die Intestate?
In the event of intestacy, children can receive both property and support. However, it is recommended that all the money be distributed to the deceased’s spouse to pay the Preferential Share. An appointed guardian may petition the court to protect a minor-aged child’s rights during proceedings.
Essentially, the children are claiming that their deceased parent was legally obligated to support them at the time of their death and still requires it. Under these circumstances, the court may access the estate’s assets, such as insurance coverage or jointly-owned property, to fund an order to support dependent children.
The outcomes of dying without a will in Ontario can be very troubling for the people you leave behind, particularly if children depend on you. You should not delay any longer in having an updated will on this circumstance alone.
Who Will Take Care of My Children?
In the absence of another parent, the court will choose a guardian for any dependent children. A guardian has the same legal rights and responsibilities as a parent.
However, this individual is court-appointed and may not be someone you want overseeing your children’s financial affairs due to differences in money-management styles. Children’s inheritance will be kept in trust until they reach the age of majority.
Why Should I Have a Will in Ontario?
As you can see, several legal hurdles exist when you die without a will. Do you still need more convincing? Here are five reasons you should have a Will in Ontario before passing away:
Reason 1. Providing for Dependants: The best course of action is to seek legal counsel regarding your dependants and estate support. By having a will in place, you determine who receives which share instead of default intestate laws and probate courts.
Reason 2. Influencing Custody Decisions: If you have sole custody of your children, then you will have the right to determine who succeeds in your role. Your choice will likely influence the judge’s decision, but the ultimate decision regarding continuing custody rests with the judge, who decides what is in the children’s best interest.
Reason 3. Planning for Asset Distributions: Before your children reach a certain age, you can appoint a trustee to retain the assigned portion of your estate. A significant inheritance for a young adult is not necessarily in their best interests. You can designate that the trustee must hold assets in a trust until the child reaches a specific age or completes a post-secondary education, for instance.
Reason 4. Mitigating Your Tax Liabilities: You will have the opportunity to minimize the tax burden on your estate by combining it with other planning documents, such as a living trust.
Reason 5. Achieving Peace of Mind: During this process, you will have the opportunity to appoint someone with whom you trust implicitly to handle your estate. Obtaining the Estate Trustee’s consent before your death will avoid confusion and additional future burden. You can also rest easy knowing that provisions are in place before your passing.
Hire a Wills and Estate Lawyer to Draft Your Will
Before the unthinkable happens, hire a will drafting lawyer in Ontario to address questions related to estate planning documents. KPA Lawyers will make the process as time- and cost-efficient as possible while protecting your legal rights. Our law firm will learn about your unique situation and offer the most sensible solution to achieve the intended outcome.
Book an Initial Consultation Today
If you or your spouse are ready to learn more about the will drafting and signing process, KPA Lawyers invite you to contact us for an Initial Consultation. Schedule yours now by completing our online booking form.