Passing away without a will can leave your loved ones with unforeseen complications and, in some cases, disappointment. No matter what stage of your life, planning for your death is not just to provide you peace of mind, but also your loved ones.
If you die without a will, the law will decide how your property is distributed, which may not be in accordance with your wishes or expectations. The court will also have to appoint someone as your personal representative to address affairs on your behalf (e.g. the payment of Estate Administration Tax and ensuring the legally defined beneficiaries receive their appropriate portion of your estate). Usually, your closest relative will have the right to be appointed by the court as your personal representative, which again, may not have been your intention. This may cause conflict amongst your closest relatives and, in some cases, result in litigation. Furthermore, by law, the distribution of your estate can be delayed until one year from the date of death and distributions that are to be made to children may have to be paid into court and administered by government authorities until the child reaches the age of majority (18).
Creating a valid will provides certainty that your estate will be distributed to your loved ones and other parties in accordance with your wishes and will aid in the prevention of stress and disagreement between your estate’s beneficiaries.
Below is a brief, general breakdown of how your property would be distributed in Ontario should you die without a will. It is for information purposes only and is not legal advice. Should you require legal advice or the preparation of a will, please call Lemke Law Professional Corporation at (647) 361-3038.
The Succession Law Reform Act and the Distribution of Your Property
In Ontario, the Succession Law Reform Act (the “Act”) governs how your property will be distributed upon your death if you die without a will. Below are hypothetical scenarios of eight different circumstances and how the Act would address each of them.
- You have a spouse and no children – your spouse will receive the entirety of your estate.
- You have a spouse and children – first, the value of your estate must be determined.
- Your estate is worth less than $200,000 – your spouse will receive the entirety of your estate.
- Your estate is worth more than $200,000 – your spouse will receive the first $200,000. If you have only one child, your spouse and child will share the remainder of your estate equally, after the spouse receives their initial $200,000. If you have more than one child, your spouse will receive one-third of the remainder of your estate after receiving their initial $200,000 and the remaining 2/3s will be divided equally amongst your children.
- You do not have a spouse, but you have children – your children will share your estate equally.
- You have no spouse and no children – your parents will share your estate equally, or if there is only one parent, your one parent will receive the entirety of your estate.
- You have no spouse, no children and no parents – your siblings will share your estate equally. If you have a sibling who has children and this sibling has predeceased you, your predeceased sibling’s children will share his or her portion of your estate equally.
- You have no spouse, no children, no parents and no singlings – your nieces and nephews will share your estate equally.
- You have no spouse, no children, no parents, no siblings, no nieces and no nephews – your “next of kin” of equal degree of sanguinity shall share your estate equally. The Act states that “Next of Kin” shall be determined by “counting upward from the deceased to the nearest common ancestor and then downward to the relative.”
- You have no next of kin – your estate will be received by the government of Ontario.
Should you have any questions regarding the information herein or if you choose to have a will or codicil prepared, please contact Lemke Law Profession Corporation at (647) 361-3038 or slemke@lemkelaw.com.
Scott Lemke is the founding lawyer of Lemke Law Professional Corporation. Scott’s practice is focused on private company corporate law, commercial litigation, and election law.