As soon as people find out that I work in the area of wills and estates, they invariably want to know what happens to the assets in a person’s estate if the person dies without a Will. Dying without a Will is known as dying ‘intestate’. At our law office in Stittsville (Ottawa), we often meet with clients who have applied or who intend to apply to be named as Estate Trustee Without a Will so that they can take care of the estate of a person that died without a Will. One of the many things we can help with is determining how and when to distribute the deceased’s estate … basically who gets what and when.
Who gets what?
If a person dies without a Will, Ontario’s Succession Law Reform Act sets out how the person’s estate is to be distributed.
If the deceased leaves a married spouse and no children, the spouse gets everything.
If the deceased leaves a married spouse and children, the spouse will usually get the first $200,000 of the estate.
How the remainder of the estate is divided depends upon the number of children the deceased left behind. If there is one child, the remainder of the estate is divided equally between the spouse and the child. If the deceased left more than one child, the spouse receives 1/3 of the remainder of the estate and 2/3 is shared equally among all of the children. If any of the children have died, their share passes to their children, if any. Alternatively, a surviving spouse can decide to claim half of the net family property instead of taking his or her share under the intestacy laws.
The amount available for distribution can be reduced if there is a successful claim for support by someone who was financially dependent on the deceased or whom the deceased had an obligation to support as of the date of death.
If the deceased leaves no living spouse or children/grandchildren, the Succession Law Reform Act says that the estate will pass to the deceased’s parents. If there are no surviving parents, the deceased’s brothers and sisters share the estate. As with the deceased’s children, if a sibling predeceases, his or her share passes to his or her children. If there are no surviving siblings, the estate is shared by the deceased’s nieces and nephews. Where the deceased leaves only more distant relatives, the distribution is more complex.
If the deceased had assets in other jurisdictions at his or her death, the heirship rules and laws of the other jurisdictions, especially civil law jurisdictions, can alter the distributions.
What if a particular beneficiary is estranged from the family?
If a potential beneficiary is estranged from the family and no one knows the person’s whereabouts, an heir search must be done. If the person still cannot be found, the person’s share must be held by the executor until the person is found or is proven to have predeceased or the person’s share can be paid into court. The cost of the search can be paid by the estate. It may also be necessary to conduct an heir search if it is possible that the deceased could have had a child unknown to the executor.
If a loved one has died without a Will and you are acting as Estate Trustee without a Will or are considering applying to become the estate trustee, make an appointment to meet with us. Intestate estates can be complex. Put our experience to work for you as we can guide you through the process and ensure you understand what you need to do.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
