Legalese_07-38

Jeff Green | Sep 27, 2007

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If You Die Without a Will

by Susan Irwin, Lawyer/Executive Director

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

For example, if you should die without issue (children or grandchildren, etc.), but are survived by your spouse by marriage, your entire estate will go to your spouse. However, if you are survived by a spouse to whom you are married and leave issue, then your spouse is entitled to the first $200,000 in value (or the entire estate, if valued at less than $200,000), with the remainder being shared between your issue and spouse.

If your issue are still minors (i.e. less than 18 years) their shares will not necessarily be managed by your surviving spouse, unless he or she makes application to the Court to be appointed as Guardian of their property. In the absence of the appointment of a Guardian, any inheritance for your issue will be held by the Court until their 18th birthday. In the event that money is required for their care before they turn 18, an application for prepayment would have to be made to the Court.

Of course, if you had made a Will, you would have had the power to appoint a Trustee and make provision for the use of all or part of your estate for the immediate benefit of your issue. You would also have had the opportunity to postpone distribution beyond the age of 18, if appropriate, to an age when you might expect your issue to be more financially responsible. As well, you could, if desired, restrict the class of issue who would benefit from your estate. It is important to realize that unless specified otherwise by Will, "issue" extends not only to children, grandchildren, great grandchildren, etc., but also includes both legitimate and illegitimate offspring.

In addition, the appointment of an Executor or Estate Trustee by Will gives that person the power to manage your affairs immediately following death. Without a Will, no one has the authority to settle your estate until someone (usually your next of kin), is appointed by the Court as Administrator. The necessity of having to go to Court can cause lengthy delays resulting in unnecessary hardship and expense for your family.

If you die without leaving a surviving spouse by marriage or issue, the SLRA designates successive next of kin, by proximity of blood relation, who are entitled to inherit. In that situation, property would go first to your parents, if alive, and if not, then to your surviving brothers and sisters or their issue, if any, and so on. Where there are no surviving kin, your property would become the property of the government of Ontario.

With the increasing prevalence of common law relationships, it should be appreciated that the failure to make a Will can result in a devastating surprise for the surviving common law spouse. It can come as a nasty shock for the surviving common law spouse to discover that he or she does not have a right under the SLRA to share in the deceased’s property. At best, if the surviving spouse can establish financial dependency, he or she may be able to successfully sue their spouse's estate for support.

Married spouses also have the additional right of being able to bring an application under the Family Law Act for an "equalization" of family property instead of taking the share prescribed under the SLRA on intestacy. Even where there is a Will, a married spouse has the choice of making an equalization claim under the Family Law Act or taking the share designated by Will. Such a choice is not available to common law spouses as they also do not have a statutory right under the Family Law Act to share in their partner’s property.

Leaving property to our loved ones may not, as this column illustrates, be quite as simple as you might have thought. Clearly, we should all take advantage of the opportunity to make a Will. Additionally, if you want to be sure that your Will complies with relevant legislation and is effective to carry out your wishes, you would do well to have it drafted by a lawyer.

If you would like to know more about making a Will, give us a call. We would be pleased to provide you with more information or, if you are financially eligible for Legal Aid Services, to draft a Will for you.