SIX (6) things that happen if you die without a Will in Ontario

Dying without leaving a will is called dying intestate. This means that, instead of you choosing how your estate is managed and distributed after your death, intestate succession legislation comes into play. Here are six things that happen if you die without a Will in Ontario:

Common-law spouses do not automatically inherit your assets.Unless you are legally married to your partner, your common-law spouse is not automatically a beneficiary of your Estate. Your partner may need to prove their dependency in order to be entitled to anything from your Estate regardless of the length of time you resided together. Otherwise, your Estate will be given to the next-in-line.

Your estate distribution will be in accordance with the law.When someone dies intestate, the person who will become the estate trustee is determined by their relationship to the deceased. This begins with the deceased’s spouse, then children, then next of kin in decreasing order. If you are legally married to your spouse they are entitled to receive the first $200,000.00 and a portion thereafter depending on how many children you have. If you have no children your spouse will inherit your entire estate. The law will decide for you.

Your relatives would have to volunteer and be appointed by the Court to administrate your Estate. No one will automatically have the right to be the Executor of your Estate (administrate your Estate). Your closest relative will be first in line to administer your estate but they will have to fill out an application to the Court to be appointed and receive a Certificate of Appointment of Estate Trustee without a Will (commonly called a Probate Application). Your bank accounts may be frozen and inaccessible in the meantime and this process can take a long time.

You will have to pay a Estate Administration Tax on the total value of your Estate.In the process of obtaining the Certificate of Appointment of Estate Trustee without a Will, there is an Estate Administration Tax that needs to be paid to the Minister of Finance. This tax is based on the total value of your Estate. For estates valued over $50,000, the Estate Administration Tax will be calculated as $15 for every $1,000 (or part thereof) of the value of the estate (approximately 1.5% of the value of your Estate).

Who the guardian of your minor children will be is out of your control.If your child has no other active parent in the picture there could be an argument between grandparents or your children could be divided between homes. The court will make the decision without your input depending on legal factors. Who the guardian of your minor children will be is out of your control and this might be someone other than who you had in mind.

If you have no next-of-kin your entire estate goes to the Ontario government.Remember next-of-kin does not include common-law spouses, lifelong best friends or un-adopted step children. If you’d intended to leave some money to a close friend, a more distant relative or a charity, this won’t happen if you die without leaving a will.

Briefly, dying without a will means that:

You don’t get to name an executor (a trusted person who will administer your will).
You don’t get to choose who receives your assets.
Your spouse or next of kin may not receive as much as you would want.
You don’t get to leave any money to charities.
You don’t get to have a say in your funeral arrangements.
You don’t have a chance to minimize taxes.
You don’t have a say in who looks after your children.
Intestate succession rules can lead to unnecessary legal costs for your estate and potentially unpleasant legal fights between your children and/or your spouse.

Mélanie Vermette

Lawyer

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