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What happens if I die without a Will?

When you die without a Will, you are said to die “intestate”. No one is designated to be in charge of your estate; there could be problems making funeral arrangements; the distribution of the estate will be delayed, and it will usually be more costly to administer the estate.

Who will share in your estate will depend on where your assets are located and how they were structured and held before you died. There are general rules that apply to intestate estates, but all rules are subject to exceptions and results will vary depending on all the relevant facts. In Ontario, the Succession Law Reform Act lists who has priority to the estate when a person dies intestate. The Family Law Act also provides certain rights to legally married spouses. If you die owning real estate in another jurisdiction, the rules of that jurisdiction will usually apply.

Not all assets that you own or have an interest in at death are considered “estate” assets. Some assets held in joint names may pass to the surviving joint owner by right of survivorship, or they may be deemed to be held by the surviving owner in trust for the estate. The result will depend on many factors, including the intention of the joint owners and who is the joint owner. Different assumptions apply, depending on whether the joint owner is your spouse, child, or other individual.

For some assets, commonly referred to as “plans” (for example, registered retirement plans), you can designate a beneficiary. If the designated beneficiary survives you, that person will generally be able to collect the plan benefits after you die, whether or not you leave a Will.

If minor children are the heirs at law, their shares will usually be paid into court and they will be entitled to their interests when they reach age 18. If you have a family member with special needs and you die with an estate but no Will, this could affect the family member’s entitlement to government support and benefits.

Certain relatives have a prior right to administer the estate and will need to apply to court to be appointed as executors without a Will. They may need to post a bond with the court as security before obtaining a certificate to administer the estate. Relatives who live outside Ontario are generally not eligible to act as executors in Ontario.

© 2015 Lawrence, Lawrence, Stevenson LLP

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