What is a Will, and What Happens if You Die Without One?

What is a Will?

A will, or “last will and testament,” is a legal document that explains how you want your assets distributed after your passing. It also lets you name guardians for minor children and dependants. Creating a will ensures your final wishes are followed and your loved ones are cared for. Think of it as a vital step in planning for the future.

What Happens if You Die Without a Will in Ontario?

If you die without a will (intestate), Ontario’s Succession Law Reform Act (SLRA) decides how your estate is divided. Many people mistakenly believe the government automatically claims your assets. In reality, your estate follows a specific line of inheritance. Only when no heirs exist does your estate go to the Crown.

Who Can Inherit Under Ontario’s Intestacy Rules?

Inheritance is usually based on blood relationships, called “consanguinity.” However, there are exceptions:

1. Spouses (related by marriage)
2. Adopted Children (treated as biological children)

Adopted children cannot inherit from their biological parents unless named in their will. Stepchildren also cannot inherit unless included in a will.

Intestate Inheritance Breakdown:

Here’s how assets are divided when there’s no will:

• Spouse, no children: Spouse inherits everything.
• Spouse and 1 child: Spouse gets the preferential share; the rest splits equally.
• Spouse and 2+ children: Spouse gets the preferential share + 1/3; children split the rest.
• No spouse, but children: Children inherit equally; deceased children’s offspring share their parent’s portion.
• No spouse or children, but grandchildren: Grandchildren share equally.
•  No spouse, children, or grandchildren: Parents inherit equally.
• No parents: Siblings inherit equally; their children share a deceased sibling’s portion.
• No siblings: Nieces and nephews inherit equally. Deceased nieces/nephews are excluded.
• No known relatives: The estate becomes Crown property.

This predetermined process often ignores personal wishes. For example, you can’t leave gifts to close friends or donate to a charity under these rules. A will ensures your legacy reflects what matters most to you.

Separated Spouses and Intestacy

In 2022, changes to the SLRA clarified the rules around “separated” spouses and intestacy. These updates ensure separated spouses do not inherit under intestacy laws. The legislation also provides a clear definition of a “separated” spouse.

A spouse is considered separated at the time of death if:

a) Before the deceased’s death:

i) They lived part for three years due to marriage breakdown, immediately preceding.

ii) They signed a valid separation agreement under Part IV of the Family Law Act. A court issued an order regarding the settlement of their affairs after the marriage breakdown.

iii) A family arbitration award was made under the Arbitration Act addressing the settlement of their affairs.

b) At the time of death, the spouses were living apart due to marriage breakdown.

These events must have occurred on or after January 1, 2022. However, in the case of (a)(i), the separation must have begun on or after this date.

Common Law Spouses and Intestacy

Under SLRA rules, common-law partners  have no legal rights to inherit from the deceased’s estate. This right is exclusive to married spouses. However, common-law partners may file a dependant support claim if the deceased provided financial support or had a legal obligation to do so.

Common-law partners can also make claims to the deceased’s property through unjust enrichment or resulting trust claims. Unfortunately, these claims are complex and often require a legal professional to succeed.

Lessons from Prince: Why Estate Planning Matters

In 2016, the world lost Prince, one of the greatest musicians of our time. His unexpected death highlighted a crucial estate planning lesson. Without a will, Prince’s multi-million-dollar estate fell into legal chaos.

His estate, which included music rights and real estate, faced over 700 claims. It took six years to resolve, and six of his siblings were finally named heirs in 2022. This legal battle was lengthy and expensive, showing the risks of dying intestate.

Prince’s case is a reminder of the importance of creating a will. Proper estate planning can prevent costly disputes and ensure your loved ones are cared for after your passing.

Why Understanding Intestacy is Important

Understanding intestacy is vital for effective estate planning. Without a will, the law decides how your assets will be divided, which may not align with your wishes. The case of Prince is a prime example. Having no will in place, his estate was tied up in legal battles.

Your Legacy, Your Terms

Creating a will ensures your final wishes are followed, and your loved ones are cared for. Here’s why having a will is essential:

Choose an Estate Trustee

A will lets you appoint someone you trust to manage your estate. This person ensures your assets are distributed smoothly and your wishes are honored.

Select Your Intended Beneficiaries

With a will, you decide who inherits your assets. Whether it’s family, friends, or charities, you have control. For instance, you can leave a family heirloom to a close friend or provide for a cause you care about.

Plan Asset Distribution

A will helps you avoid disputes by outlining asset distribution. For example, you might leave more to a child who needs financial support or divide assets equally among your children. Clear instructions prevent confusion.

Support Charities

You can also donate to charities that matter to you. This not only supports important causes but may also offer tax benefits. For example, you could leave a gift to a local animal shelter or a health-related non-profit organization.

Avoid Probate Delays

Prince’s case shows the challenges of managing an estate without a will. Legal disputes can be lengthy and expensive. A well-structured will simplifies probate, reduces costs, and speeds up access to funds for beneficiaries.

Name a Guardian for Minor Children

If you have young children, a will lets you appoint a guardian. This ensures they are cared for by someone who shares your values. For instance, you might choose a sibling with a strong bond to your children.

Provide for Pets

Your will can include arrangements for pets. You can name a guardian and set aside funds for their care. For example, you might leave your dog to a friend who loves animals and ensure funding for their needs.

Take Control of Your Future

Without a will, legal complexities can cause chaos. Prince’s story highlights the risks of neglecting estate planning. By creating a will, you safeguard your legacy and protect your loved ones from uncertainty.

Start Estate Planning

Planning your estate doesn’t need to be overwhelming. Our Last Will & Testament Toolkit provides simple, cost-effective solutions. For a more comprehensive approach, explore our Estate Planning Toolkit. These resources give you the tools to confidently manage your estate and secure your family’s future.

Take the first step today and ensure your legacy reflects your wishes.

Disclaimer: The content provided on this blog is for informational purposes only and is not intended to be, and should not be taken as legal advice. The discussions and insights featured herein are meant to enhance your understanding of legal matters in a general context. However, each legal issue has its own unique set of facts and circumstances and should be discussed with a qualified legal professional. For advice tailored to your specific situation, please contact a lawyer of your choice. Use of this blog does not create a lawyer-client relationship between you and the authors of this website.