Articles & Resources
Wills And Estates Series – What Happens if i Die Without A Will?
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.
With no Will to provide such instructions, legislation in Ontario called the Ontario Succession Law Reform Act will outline how your property will be divided and distributed. And no, it government doesn’t just take everything from you immediately – it gets divided and distributed to your “estate” meaning your relatives.
Why get a Will done then if there’s legislation that will do it for me? A couple of reasons.
- For one, how the legislation divides your property may not be the same as how you would have wanted to have it divided and distributed
- Second, it does not provide for any gifts of any amount to charity, even if it was your wish and/or would result in significant tax benefits
- Third, a common law spouse will have no right to inherit from an intestate estate
- Fourth, someone who lives outside Ontario cannot be appointed the estate trustee without a will
When a person dies without a will, usually a close relative must apply to the court to be appointed as the estate trustee without a will, which is called “Probate”. If there is a dispute as to who should be appointed as estate trustee, the matter must be referred to a judge to determine the most appropriate person to act as estate trustee. If, on the other hand, there is no one eligible to apply to be the estate trustee, then you have to find a third party who is willing and able and the Court has to approve that person.
Basically – it’s a messy process not having a will.
So, how does the legislation distribute my property?
We’ll run though some of the more common scenarios:
Scenario 1 - 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.
Scenario 2 - 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.
Scenario 3 - 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.
Scenario 4 - you have no spouse and no children:
Your parents inherit your entire estate.
Scenario 5 - 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.
Scenario 6 - you also have no brothers and sisters:
Your nieces and nephews each inherit an equal portion of your estate.
Scenario 7 - you have no nieces and nephews:
All other next of kin inherit an equal portion of your estate.
Scenario 8 - you have no living next of kin:
Your estate goes to the Ontario government.