What Happens if You Do Not Have a Will in Ontario?
The COVID-19 pandemic has forced many of us to face our own mortality, this includes looking for answers to a somewhat troubling question; What will happen if I pass?
For many, the main focus is on how their loved ones will be supported and how their assets will be distributed. The latter is usually outlined in an individual’s Will. For those that had been putting off composing a Will or for those that had an outdated Will they may have been left looking for a wills and estate lawyers to help prepare an updated Will.
In the scenario where someone passes away without a Will, they would have passed away intestate. This means that they have left no direction as to how their assets are to be divided and distributed. In these cases, the Ontario Succession Law Reform Act controls how their assets are distributed to their family.
In accordance to this Act, the first $200,000 in value or otherwise known as the preferential share will be passed on to the deceased’s spouse. The other option the spouse has is to request 50% of the total family property under the Family Law Act. This Act, describes a spouse as a married individual, and does not include common-law spouses or co-habiting individuals. The Family Law Act entitles a spouse to an equalization payment of half of the deceased individual’s assets which exceed the assets of the surviving spouse. It is advised for the surviving spouse to seek guidance from a lawyer before they decide which option is best for them. If there is no spouse at time of death, the deceased’s children will obtain the estate.
Once the preferential share is taken from the assets, anything remaining above this initial $200,000 is divided amongst the spouse and their children. In the case that one of the deceased’s children has passed, that child’s share will be given to their children (the deceased’s grandchildren). If there were no children, the spouse would be entitled to the entire estate.
As outlined above, common-law spouses do not have the same property rights as married spouses. In Ontario, the surviving common-law spouse is not entitled to any portion of the deceased’s estate. However, this does not mean that a common-law spouse is left to fend for themselves. Depending on the situation a common-law spouse can make a claim against the estate of the partner that passed away. There are two ways to file a claim, as a dependency claim or as an unjust enrichment claim.
Contrary to the belief of some, the government does not take ownership of the estate of an individual who passes away interstate. They attempt to distribute the assets equitably amongst their spouse and children. If there is no spouse, children or grandchildren at the time of death, the estate is awarded to their parents. If they have no living parents, it is split amongst their siblings. Finally, if there are no living siblings, the estate is shared amongst their blood-related nieces or nephews or their next closest blood relatives. Only if there are no living blood relatives will the estate become the property of the government.
Without a Will in Ontario, your estate will be divided and distributed under the provincial guidelines. You are not able to choose how you would like your estate distributed, you are not able to leave any portion of your estate to friends or to a charitable organization. Without a Will, your family members will endure unnecessary hardships, uncertainty, hold-ups and costs involved in dealing with your affairs.
Preparing a Will can reduce the stress and burden on your family. At AGS Law we offer comprehensive family law services in Barrie and South Eastern Ontario, our team will provide you with legal guidance and assist with preparing your Will. Please give us a call today 705-735-0003 and let us help you.