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What Happens If I Have Not Made a Will? Intestacy

Man Signing a Will in Newmarket

Last week we discussed the forfeitures that you surrender by not leaving a Will. Today we will discuss the SLRA and laws of intestacy that govern your estate in the absence of a will.

Laws of Intestacy Apply

By leaving no Will, the  Succession Law Reform Act, R.S.O. 1990, c. S.26  (the “SLRA”) will govern how your property will be distributed in a specific order. According to the SLRA, the assets of the deceased who died intestate are distributed in the following order:

  • To the spouse, the first $200,000;
  • To the spouse and children, the excess over $200,000;
  • If no spouse, then to your children, who each inherit an equal portion of the estate;
  • If no spouse or children, then to your parents;
  • If no spouse, children or parents, then to your siblings;
  • If no spouse, children, parents or siblings, then to nieces and nephews;
  • If more remote relatives are involved, then special instructions may apply; and
  • If no living next of kin, then to the Ontario government.

Additionally, heirs are required to prove their identity as heirs of the deceased in order to claim a portion of the estate.

An Estate Trustee Will Need to Be Appointed by the Court

When you fail to make a Will, a Certificate of Appointment of Estate Trustee Without a Will must be obtained from the court. The person who applies for estate trustee must have a financial interest in the estate (e.g., as an heir), be an Ontario resident, potentially post a bond and be prepared to administer the estate. Because an estate trustee may need to give extensive personal time and put up a costly bond to fulfill the role, the pool of candidates for the position may be few. It is possible that no one in your family will step up for the role he or she wasn’t named for.

The Office of the Public Guardian and Trustee (OPGT) may be appointed as the body to distribute these assets at a cost. The OPGT may also get involved if there are heirs who are minors and/or are mentally incapable. Failing to have a person appointed to administer the estate by making a Will can cause unnecessary delay and added expenses.

Added Expenses

Although many individuals believe it could be costly to make a Will, the cost of dying without a Will can be much higher. For example, your estate assets may not be distributed tax efficiently without a Will, where tax saving abilities can be granted.

If competing individuals want to act as your estate administrator or there is some extrinsic evidence to uncover your intentions, the costs in court can be onerous. Estate litigation could result if the appointed estate trustee is inexperienced and lacks sufficient financial knowledge for potentially complex matters, which can lead to mistakes or mishandling of the estate. If the estate trustee lacks confidence and seeks extensive legal advice and assistance, the costs of the estate administration could be higher than necessary.  

Contact Us at Epstein & Associates, Wills & Estate Lawyers in Newmarket & Richmond Hill

At Epstein & Associates, our experienced lawyers will meet with you, listen to your objectives and help you to prepare a Will that meets your needs and satisfies your peace of mind. A Will only takes effect in the event of your death and it can be updated anytime thereafter until you no longer have the capacity to make or change it. Allow yourself a voice in death and plan your Will today! Contact our Wills and Estates lawyers in Newmarket, Richmond Hill, Toronto, Aurora and Barrie to prepare your Will today.