Estate Planning – Preparing a Will in Ontario

August 2, 2018

Intestacy: What happens if you die without a Will?

Many people are concerned about what happens if they die without a Will. While each circumstance is different and complex family dynamics may bring into play other laws, below is a basic, a non-comprehensive summary of what happens if you die without a Will.

The intestate succession laws referenced below are found in Part II of Ontario’s Succession Law Reform Act (1990):

 

  Without a Will
With a Will
How is your estate distributed?Your estate will be divided between your spouse (if you are legally married) and your children, in accordance with a formula established in Part II of Ontario’s Succession Law Reform Act 1990:
If the deceased had no children, the surviving spouse inherits all the deceased’s property.

If the deceased had one child and a spouse, the surviving spouse inherits the first $200,000 and the balance is divided between the spouse and the child.

If the deceased had more than one child and a spouse, the surviving spouse inherits the first $200,000 plus one-third of the remining assets. The remaining two-thirds is then divided equally between the surviving children.

If you are unmarried and have no children, your Estate will be inherited by your parents.

If your parents have predeceased you, your surviving siblings will inherit your estate.

If you have no surviving siblings, your Estate will be inherited by your nieces and nephews.
Finally, if you are not survived by any nieces and nephews, your Estate will be divided between your next of kin.
Subject to any obligations you may have to your dependant children or spouse, you can divide your Estate however you want in your Will.
Spouses also have significant property rights against your Estate under Part I of the Ontario Family Law Act (FLA) that could supersede the provisions of your Will, particularly if your Last Will does not adequately provide for your spouse.

According to section 6 (1) of the FLA, when a spouse dies leaving a Will, the surviving spouse can elect to take under the will or to receive the entitlement s/he has to equalization of net family property under Section 5 of the FLA.
Who will administer your estate?If you are legally married, your spouse and all of your children have the first right to manage your estate.You can name anybody to administer your estate, including a friend, advisor or institution.
What will happen to my assets?If you beneficiaries can’t come to a resolution about a property, the court may order that it be sold.You can determine who gets what and impose conditions as you see fit. You can also leave it to one person during their lifetime and to another after that person dies or moves out.
What will happen to the assets bequeathed to minor beneficiaries?The money will go directly to the beneficiary, or to their parent/guardian if they are minors or unable to manage their own affairs.
The funds cannot be managed in a trust without court approval.
You can establish a specialized trust to be managed and paid out to your beneficiaries in a responsible manner, as you may decide.
You can structure affairs to maximize social assistance and disability benefits for your beneficiaries.
Distribution DateA child who inherits and is of the age of majority is free to receive and spend their share as they desire.You decide at what age your children will receive all or a portion of their inheritance, according to what you feel is in their best interest.
AuthorityAn Estate Trustee cannot act until a Certificate of Appointment has been granted by the Court; the assets cannot be used in the interim.
The Estate Trustee/Executor is granted authority from the Will.

 

Estate planning documents that are executed without a lawyer run the risk of being unclear or invalid for not fulfilling the legal requirements as set out in the Succession Law Reform Act. They may not consider all the legislation and taxes relevant to your estate and may leave your last wishes unfulfilled. This could lead to contentious litigation.

Your Estate Planning lawyer can help you plan for your children’s future and distribute your estate as you see fit. Use an experienced lawyer to draft and execute your Estate Planning documents.

Individual circumstances vary in each case.

Contact Charney Legal to discuss your estate planning needs and obtain legal advice relevant to you.

 

The general information on this page is not applicable to any specific case and is intended for information purposes only. It is not a substitute for legal advice and may not be relied on as such. Readers are expressly advised to consult with a qualified lawyer for advice regarding their specific circumstances and entitlements under Ontario law.

 

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