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Playing With Fire: Probate an Estate Without a Will

Your common law partner just died without a will. What you do next could determine how well probating her estate goes.

Making Decisions in a Family Crisis

You’re grieving yourself, but time is moving quicker than a Snapchat message. Between planning the funeral service you think she would have wanted (since she left no directions), you have to console her widowed mother, who lives downstairs. She wants a full burial in a Jewish cemetery and a three-day sitting shiva. You’re leaning to a celebration of life in your interfaith church. The kids aren’t talking to you and the perky Jack Russell barks all day at the cat next door. Should have got a bulldog. 

Who Owns the House

The shiva’s over but the bank just called. Your partner owned the house and mortgage. They want to know if you’ll be buying it or moving out and when. Seems you’re not on the property title. It may have been your family home, but she never did get around to making it legal. Maybe her mother will inherit and let you, the kids and “Jack” stay.

Where’s the Will?

Your partner didn’t mention a will and you’re pretty sure she didn’t have one. The bank just returned your frantic voice mail. No, they can’t give you access to her safety deposit box without a court order. Guess you could check with her lawyer and the wills registry at the downtown courthouse.

Next Stop Probate Court

It’s confirmed. She died intestate, without a will. It’s your turn to step up and get a certificate of appointment of estate trustee without a will. You could go it alone or call a probate lawyer (we highly recommend a lawyer). 

Since your partner didn’t make a will, she needs an estate trustee — sometimes called an executor or personal representative — to manage her legal and financial affairs and distribute her assets. A certificate from an Ontario probate court will give you legal authority to do that, unless others object or apply themselves. 

Spouses and next-of-kin take priority. The court will choose a representative from those who apply or if no one is suitable, name a government administrator to distribute her estate. 

Getting Your Documents Together

A probate lawyer can do the work for you. They’ll file the application and other legal documents. Your lawyer will need a death certificate from the funeral director, list of assets and their estimated value and contact information for her heirs. 

Here’s where it gets messy. Since your partner didn’t make a will, you’ll need to:

  1. Notify all her heirs that you plan to apply.
  2. Get signed consent from majority beneficiaries, like her mother.
  3. Notify the Office of the Children’s Lawyer for beneficiaries under 18.
  4. Inform guardians, a lawyer or The Public Guardian and Trustee for beneficiaries who are mentally incompetent.
  5. Post a bond for double the value of your partner’s estate or apply to the court to waive it.
  6. Pay an estate administration tax based on the value of her estate, if it is over $50,000.
  7. Provide copies of all the documents to probate court.

And that’s just the start. Once you get approved, you’ll be responsible for notifying creditors and utilities, paying debts, selling assets like her car, home and personal possessions, cancelling credit cards, distributing the remaining estate to her heirs and keeping accurate records for the court.

Your lawyer can give you advice along the way and, depending on how complicated her estate is, you may need an accountant or other professional advisors along the way. 

What About Your Spousal Rights?

As a common law partner, your claim to your spouse’s estate is limited. Unless you had a joint tenancy agreement (obviously you didn’t) or bought the house together and were on the property title, you forfeit the right to live in it unless whoever inherits it agrees to rent it to you. You could file a legal action for contributions you made to the home’s upkeep or household, like giving up your job to care for children, but that will take time to prove. 

Hopefully, she named you beneficiary of her life insurance or investments like TFSAs or RRSPs. In that case, they will flow directly to you and not be part of her probated assets. You may be eligible for a survivor’s pension from her employer or the Canada Pension Plan (CPP) and a CPP one-time lump sum death benefit. If your income is low and you are 60 to 64, you could also qualify for the GIS (Guaranteed Income Supplement) allowance for survivor benefit.

As long as it’s in the children’s best interests, the court will typically award you custody of minor children you had together or legally adopted.

Don’t take us wrong. You can do it yourself. We’re just saying forewarned is forearmed.

Get Advice on Probate in Ontario 

Axess Law’s Ontario probate lawyers can advise you on probating an estate without a will. Virtual video call appointments can be made by calling 1-877-522-9377 or in Greater Toronto 647-479-0118 or using our online booking form. Dial in to a remote video call 7 days a week, day or evening, at your convenience. In-person meetings can be arranged at our  Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s probate law services.

Photo by Evgeniya Litovchenko|Pixabay.

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