Did you know that 57% of Canadians do not have a will? You may wonder what happens to your estate if you pass away without a will. What will happen depends on the state of the deceased’s family. A person who dies without a legally valid will is considered to have died “intestate”. This does not mean that the estate goes to the government. It will go to someone close to the deceased. However, the deceased will not have any control over who the estate goes to and who will manage the estate.
Who Will Get Your Estate?
As previously mentioned, when someone dies without a will, they have no say in who will inherit their estate after death. This will be decided by provincial laws, which have very little flexibility. The estate will go to the spouse if the deceased has a spouse but no descendants. If both a spouse and descendants survive the deceased, the spouse will receive the spousal preferential share and the household furnishings. After this, the spouse gets 50% of the estate, and the descendants receive the other 50%.
If the person dies without a spouse or descendant, then the estate will go to the person’s relatives based on a parentelic distribution system designed to determine the heirs of a deceased person. In this case, the estate will first go to the deceased’s surviving parents. If there are no surviving parents, then the estate will go to the descendants of the parents. This cycle continues, and if the deceased has no survivors within the fourth degree of the relationship, then the estate goes to the government. However, this is not the case with a bank account. The provincial government will decide what happens to the bank account of someone who dies intestate. The government generally prioritizes immediate family members or blood relatives.
When dying without a will, there may also be disputes between family members. Often, there are arguments claiming that the deceased promised a certain person something, with another family member claiming that it is theirs. In the end, neither of them may end up satisfied, as the government has rules for who gets the estate if you pass away. If you wish to prevent disputes and have your wishes fulfilled after you pass away, then creating a will is a necessity.
Who Will Be in Charge of Your Estate?
Someone must apply to the court to be the administrator of your estate. An administrator has the same duties as an executor; however, there is one significant difference between the two. An administrator cannot begin to act on your behalf until the court gives permission, which can take a while. If nobody steps up, the court must appoint a public trustee.
What Happens with Children?
If your child is under 18 and does not have another surviving parent, the court will decide on a guardian. You do not get to choose who this person is — the selected individual gains all the rights and responsibilities of a parent. Your child’s inheritance will be held in a trust until they reach the age of majority. In Ontario, the office of the Children’s Lawyer may act on behalf of your child until they turn 18.
How To Create a Will
If you do not have a will, it is best to prepare one so you can choose what happens with your estate. How you decide to draft your will is up to you. Different options are available depending on the assets you own and who you would like to inherit them. A competent lawyer can help you draft a will that reflects your needs and wishes.
This material is for informational purposes only and should not be relied upon as legal advice. To book a consultation with Buzaker Law Firm regarding drafting your will, contact us at firstname.lastname@example.org or (905) 370-0484.