What happens if you die without a Will?

a few words from us
Mar 10 2016

What happens if you die without a Will?

Having a Will is a great idea for various reasons. The most obvious function is that you could ensure your estate is distributed as you wish. Other functions of a Will include your ability to appoint a guardian for your minor child(ren) should something happen to both you and your spouse. In some religions, such as the Baha’i Faith, having a Will is mandatory.

I have been asked to confirm whether “the government will take all of your assets if you die without a Will”. The short answer is unless you have absolutely no relatives who may show up after your death or could be found with some reasonable effort, your property will pass on to your family.

However, it goes without saying that drafting a Will is not at the forefront of our thoughts as, lets say, paying the mortgage is.

In Ontario, Part II of this piece of legislation called Succession Law Reform Act, deals with the distribution of an intestate estate. Intestacy basically means you either have no Will or you do have one but it is void for one reason or another. So the laws that regulate the distribution of the estate of someone who died without a legally valid Will are called intestacy laws.

In Ontario if you die without a valid Will your surviving spouse, issue (children), parents, sibling, niece or nephew will typically inherit the net value of your estate, in that order. Part II of Succession Law Reform Act outlines that your estate will be distributed as follows:

If you have a surviving spouse (married, not common-law) and no children, your spouse will be entitled to the net value of your estate;

If you are survived by your spouse and issue(s), things will start getting complicated :

  • If the net value of your estate is equal to or less than $200,000 (preferential share), your spouse will get everything and your children nothing
  • If the net value of your estate is more than $200,000 and you are survived by one issue then your spouse will get his/her preferential share and the rest is distributed half and half between the spouse and your one child
  • If the net value of your estate is more than $200,000 and you are survived by your spouse and two or more issues, the balance of the value, after your spouse receives his/her $200,000 plus a third of the remaining and what’s left (2/3 of the balance after deduction of $200,000) is divided equally between the children

If there’s no spouse or children, but you are survived by parent(s), the net value of your estate goes to your surviving parent or parents equally;
If your spouse, children, and parents predecease you but your siblings survive, they will be entitled to your estate;
f none of the above are living at the time of your death but you have nieces and nephews, they will get it;
Lastly, if your spouse, issues, parents, children, nieces, and nephews all predeceased you, the value of your estate is distributed among your next of kin, according to the table of consanguinity.

Now, if no next of kind can be found either, then that’s when your estate will escheat to the crown, or the government will take it all!
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