MacKenzie Law memos

LEGAL MEMOS

Dying Without a Will

When you die without a will it is referred to as “dying intestate”. If you die intestate the Ontario Succession Law Reform Act provides the mandatory scheme to distribute your assets.

The scheme is as follows:

  1. If you have a spouse, but no children:
    Your spouse inherits everything. This only applies to legally married spouses. Common-law spouses do not automatically receive anything if you die without a Will.
  2. If you have a spouse and children:
    Your spouse first takes a preferential share up-to $200,00.00 worth of assets. Anything left over is called the residue. Such residue is divided between your spouse and your children as follows: If there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.
  3. If you have children, but no spouse:
    The children inherit your entire estate.
  4. If you have no spouse and no children:
    Your parents inherit your entire estate.
  5. If you have no spouse, no children, and no parents:
    Your brothers and sisters divide your estate.
  6. If you also have no brothers and sisters:
    Your nieces and nephews each inherit an equal portion of your estate.
  7. If you have no nieces and no nephews:
    All other next of kin inherit an equal portion of your estate.
  8. If you have no living next of kin:
    Your estate goes to the Ontario government.

This may not be how you wanted your estate divided.

  • Additionally, your beneficiaries will need to go to court to have an executor appointed in order to legally deal with and transfer the assets. They will need to obtain a “Certificate of Appointment of an Estate Trustee Without a Will” and there will be a time delay that may be a burden for the beneficiaries.
  • Common-Law Spouse
    A common-law spouse has, at this time, no right to any distribution under an intestate estate. They may be a joint owner of property and entitled to a right of survivorship and/or they may be a “named beneficiary” under an RRSP, TFSA, etc., but those rights do not flow from the intestate estate. Those rights are outside the will.

Remember that every situation is different and this article deals only with generalities. If you are uncertain as to your rights in a certain situation you should consult your lawyer.