What Happens If I Die Without a Will?

For most Canadians, having a will is still not the norm. According to a survey by LawPro, the majority of Canadian adults (56 percent) do not have a signed will. The most frequently sited reason for not having a will is not knowing how to get started or believing it is unaffordable, which is not true.

Failing to Make a Will Means Being Unable to Choose Your Estate Trustee

Failing to appoint a person (and a backup to that person) in a will to act as your Estate Trustee is a first mistake. Someone will need to step forward in court to take that legal responsibility. Finding someone suitable for the task can be difficult, particularly since having no will means that this person will also be required to post a financial bond (twice the value of the estate) as security. The court may appoint someone who may not be optimal for the role, sometimes out of lack of available alternatives. This person may be unfamiliar with your assets and lack financial and/or estate administration knowledge and may not be who you would have chosen.

Failing to Make a Will Means Having No Say in How Your Estate is Distributed

Another major drawback of failing to make a will is that your assets may not be distributed as you might have chosen, such as giving all to your spouse.  Your assets will be disposed of according to the provincial laws of intestacy (under the Succession Law Reform Act in Ontario). If you are married with children and your assets exceed $200,000, your spouse could only be entitled to the first $200,000 plus a fraction of the rest and not the entire estate. If you are living in a common law relationship, your spouse has no automatic entitlement rights to your property. A common law spouse may seek financial support, but could still be displaced from living in the home.

Under the laws of intestacy, a portion of your assets are passed to your children and not necessarily in the way you intended to (e.g., your adult child’s ex-spouse or your adult child’s bankruptcy trustee).  Your assets may be distributed to heirs you did not intend to benefit, such as to those who you were not close to (e.g., siblings and cousins). If you have minor children, you forfeit the right to choose a guardian for them by failing to make a will. Any assets that are determined by law to be for your children must be paid to the Accountant of the Superior Court of Ontario and held there until your child reaches age 18 (unless he or she is legally disabled). The Office of the Children’s Lawyer will help to determine what amounts will be paid for your child's maintenance, with a portion of the funds taken by them each year for trustee fees. In consequence, you will have no say in how those assets are invested, spent on your children, and when they are distributed.

Why You Need A Will, and How it Will Save You Money in the Long Run

Many people have a goal of minimizing unnecessary costs, yet dying without a will can be more costly to your estate (e.g., with taxes). Without a will, your assets may not be distributed in a tax effective way to heirs who have differing marginal tax rates. You also will not have taxes minimized through the use of testamentary trusts for your spouse, children, grandchildren, or for charities. The person who administers your estate will not be able to achieve the same tax savings that you could have done if you had planned otherwise for possible scenarios (e.g., there could be additional estate taxes associated with any simultaneous death of your married partner). There can also be financial costs in court if competing individuals want to act as your legal representative or if no one is willing to take the role of Estate Trustee. Legal costs can also add up if any of your heirs begin estate litigation.

Contact Us at Donnell Law Group for Wills and Estates Lawyers

At Donnell Law Group, we prepare professional wills at a very reasonable cost. Our wills and estates lawyers will ensure that you receive the legal advice you need and that your wishes are reflected in the will. Everyone should have a will, so contact our law firm for yours today. We service Markham, Richmond Hill, Newmarket and many other locations throughout Southern Ontario at 1-888-307-9991.  

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