Leaving your legacy to chance – What really happens if you die without a Will?

There’s plenty of uncertainty around death and dying, which is why most people avoid thinking about it, let alone planning for it. One of the ways to take the guesswork out of what will happen to your assets when you die is to create a Will. Contrary to popular misconception, Wills are not just for people with lots of money and assets. A Will can be a very useful document that provides clarity around who you want to administer your estate, what you want to happen to your assets, and who should take care of any minor children or pets.

When a person dies without a valid Will it is called dying intestate and regional laws will dictate who gets what. For example, in the Province of Ontario, the Succession Law Reform Act (‘the Act’) sets out how the estate is distributed based on a next of kin formula. Other Canadian provinces, such as Alberta and British Columbia, use a parentelic system to inform distributions from your assets.

Each region has their own intestacy laws, which distribute your estate in the manner the government sees fit, and if you do not have a Will, your wishes may not be considered. Moreover, not having an appointed executor can create considerable delay in asset distribution, as well as the potential for family feuds.

Impact on legally married spouses

Because intestacy laws set out how the estate is distributed, it is important to note that, for estate purposes, some regions, such as the Province of Ontario, does not treat common-law relationships the same way as legally married spouses when one partner dies without a Will. While a spouse and children will likely end up with your assets, it may not happen exactly as you would have intended. This is one reason why having a Will in place can take some of the guesswork out of what will happen to your assets.

For example, in the Province of Ontario, if you die without a Will and are survived by a spouse without children, then the spouse is entitled to the entire estate. However, if you are legally married with children and you die without a Will, then the intestate estate is distributed in accordance with the Succession Law Reform Act and corresponding Regulations. Your spouse would receive a preferential share, up to $200,000 of the estate’s assets with the remaining balance being divided among the surviving spouse and children. Moreover, if your children are minors, their portion will be paid into Court and held in trust by the public trustee until they turn 18 (or 19 depending on your region). This only applies to assets that are not held jointly.

Impact on common-law spouses

Under most regional intestacy laws, your common-law spouse is not automatically entitled to inherit all of your assets if they die without a Will. In the Province of Ontario, the Succession Law Reform Act defines a “spouse” as a person married to the deceased. Common-law spouses are not entitled to any part of the deceased’s estate when the deceased partner dies without a Will, except through a dependent relief claim.

If you then die without a Will, the Ontario statute allows a common-law spouse to apply to the Ontario Superior Court to appoint an estate trustee or administrator of the deceased’s estate. Once the order for appointment is obtained, and following payment of the deceased’s debts, the balance of the deceased’s intestate estate is distributed in accordance with the Succession Law Reform Act. Children of common-law spouses will share the residue of the estate equally, and an application for dependent relief can be made.

It must also be noted that there is no statutory list of who has a priority on being appointed as estate trustee. It is not uncommon for a deceased’s common-law spouse and the deceased’s parents or siblings to make competing applications to become the estate trustee of the deceased’s estate. This can create a lot of problems for those you leave behind, which creating a Will allows you avoid.

Impact on children and families

Regardless of whether parents are legally married or not, when one parent dies without a Wil,l assets inherited by children under the age of majority will be held in trust by the public trustee. Children will only be entitled the assets once they turn 18 (or 19 depending on jurisdiction). This may not be the ideal situation for many families.

As a consequence of dying without a valid Will, some families may miss out on tax deferrals, or be without income which can cause financial hardship. Having a Will in place lets you take control and divide your property among the people you want to benefit. It should be updated periodically as your circumstances change, such as marriage, divorce, or having a child. It is an important step in ensuring that your estate is settled in accordance with your wishes, and not left to chance.

Regardless of whether parents are legally married or not, when one parent dies without a Will assets inherited by children under the age of majority will be held in trust by the public trustee. Children will only be entitled the assets once they turn 18 (or 19 depending on jurisdiction). This may not be the ideal situation for many families.

Willfora is Canada's first completely FREE service to allow anyone to create or update their Will in a secure and simple online format. As a free alternative to hiring a lawyer, Willfora was created in an effort to prompt Canadians to consider leaving a charitable gift to a cause that’s important to them, while potentially saving thousands of dollars in the process. Willfora also offers unlimited updates and easy instructions on how to sign off and store an up-to-date Will.  

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