Dying Intestate or Without a Will

If you die without a will that details your wishes for any property that you have, this is called dying intestate. This means it will be up to the law to decide how your property should be divided and distributed amongst family members in the event of your death. In particular, the Succession Law Reform Act in Ontario will play a big part in deciding what relatives will receive after your death. While a lot of people want their property to be distributed in line with provincial law, it is still recommended that you create a will. This will avoid the expenses and amount of time it can take to correctly deal with your affairs after your death.

The Succession Law Reform Act

So, how will your property be divided under the Succession Law Reform Act? If you die without a will and you have a spouse with no children, you can expect your spouse to inherit all of the property that you have. However, this will only be the case if you are legally married to your spouse. Being together for a long time does not mean that they will automatically receive all of your property without a will.

If you are legally married to your spouse and you also have children, this will change how your property is distributed. Your spouse will be entitled to what is referred to as a preferential share of your assets, which is up to $200,000. If you have more left over after your death, this is referred to as the residue, which will then be divided between your spouse and your children. For example, if you have one child, the residue will be split in half with the spouse. For a family that has more than one child, the spouse will receive one-third of the residue total, while the rest will be shared equally among the children.

If you do not have a spouse but you have children, your property will be distributed equally when you die without a will. They will receive an equal proportion and if one of the children has died, their share will be inherited by the grandchildren.

For someone who dies without any spouse or children, their property will be inherited by their parents. However, if there are no parents, the entire estate will be divided to the brothers and sisters. It will continue to work down the family tree if these relatives have died, which means your property would then go to nieces and nephews or other next of kin.

If you die without a will and you have no family or living next of kin, your entire estate will go to the Government of Ontario.

Dying Without a Will

A lot of people have property that they wish to leave to certain relatives and if you die without a will, this may not happen. This means that if you do not have a will prepared before you die, it will be up to the law to divide your property and your wishes will be ignored.

In addition, dying intestate means it will take longer to distribute your estate and extra expenses for the courts sorting out your affairs. A personal representative will have to be appointed, which is normally a close relative in order to manage your estate and have it distributed. This will include asking the court for a Certificate of Appointment of Estate Trustee Without a Will. This can be a complicated process, which can take some time.

Another step in the process is to provide ‘proof of death’. This became law on January 1 2016 and now it is necessary when applying for a Certificate of Appointment of Estate Trustee to have a death certificate to distribute the estate. This can include a Registrar General or Funeral Director’s death certificate.

Is it Beneficial to have a Will?

As we get older, a lot of people think about whether they should create a will or not, especially if they have children or close family. It is said that there are less than 50 percent of Canadians currently have a will in place for when they die.

So, is it really beneficial to have a will? It is recommended that if you have children or property, it is going to be best to have a will that comes into effect when you die. This legal document will take care of everything, such as who will get your assets and child custody. If you do not prepare a will for your death, you will die intestate. This means that the laws of Ontario will come into play and divide your property for you, based on family relations. But, having a will in place is still going to minimize the expenses and ensure there are not any delays in dealing with your property.  

In particular, a will gives you the freedom to detail how you would like your property to be given away when you die. This includes how bank accounts and land is divided between family, as well as who can have personal belongings. In addition, having a will has the effect of minimizing tax burdens. You can name a family or friend to be your personal representative or the executor of your will. This means they will in charging of following the instructions of your will and they will help to deal with your personal affairs when you die. Importantly, if you have young children that are under 18 years old, a will prepares a guardian to care for them in the event of your death. You can name who you would like the guardian of your children to be.

Ensure Your Will is Valid

In order for your will to be a valid legal document that will come into effect when you die, you have to make sure that certain requirements are met. This includes your will being written and signed by you. This means a will that is recorded or videotaped will not be legally valid. If it has been typed out on the computer or another person has handwritten the will, it is essential for two witnesses to be present when you sign it. In addition, the two witnesses should sign the document too.

Another requirement of a valid will is that the person making the will, known as the testator, must be a minimum of 18 years old. However, there are some exceptions for those under 18 years old, which includes if you are married, a member of the Canadian Armed Forces or a sailor at sea. If you are contemplating marriage, the will is valid when the marriage takes place.

Finally, the person that is creating the will should be mentally competent. This means that you must understand the effects that this legal document will have and why it is in place. This will be an important question to ask if the person creating the will is senior at the time.

If you are interested in making a will, it is usually a simple and inexpensive process when it is completed by a professional. A lawyer will be able to advise you on the best way to set up your will and you can detail how you would like it to be created.

Can I write my own Will?

While it can be hard to think about the end of your life, preparing a will is an important step for making sure that your family are looked after when you are gone. It doesn’t matter what age you are, having a will makes sure property is distributed the way you want it to be after you die. Otherwise, the laws in Ontario will come into play and this can be a long and complicated process. It is believed that around half of Canadians do not have a will.

A common question that people ask is whether they can write their own will. The answer to this question is yes, but it is not recommended. It must be handwritten by you and signed too. But for a will to be a formal and legal document, there are rules that you have to follow. While you may think you know how to write your own will, if it is missing these legal requirements, it will not be valid. In other words, not preparing your will properly will mean that your family will face financial burdens and a long legal process to deal with your personal affairs.

The best way to ensure that your will is valid and formalizes your wishes is by preparing it with the assistance of a lawyer. A professional will be able to help you and offer the legal advice that you need to make sure your will is going to be legally binding upon your death. In particular, if you are getting married or are thinking about a divorce, this is a good time to seek legal advice. In addition, if you have extensive property and a large estate, as well as international assets, a professional is going to make sure your will is correct. If you are elderly or have a psychological disease, you are going to require a lawyer to create your will for it to be valid.

The Personal Representative of Your Will

If you have a will in Ontario, you will choose someone that you trust to be the executor of your will. This person is also called a personal representative and their duty will be to carry out your wishes that are detailed in your will concerning the distribution of your property. They will make sure that the relatives receive the property that you want them to have, as well as deal with other duties to make sure that your will is followed correctly after your death. You can decide to appoint a few personal representatives for your will, as well as choose an alternate executor. This means that if there is some reason why your personal representative is unable to fulfil their duties, the alternate will step in.

Who Can I Choose?

You will be able to choose any personal representatives to manage your affairs and to follow your will. This person should be at least 18 years old to be your executor, as well as understand the duties that are involved for a personal representative. Otherwise, if you choose someone that is too young or does not understand what is expected of a personal representative, the courts will have to appoint someone for you upon your death. The most important thing is that you choose a personal representative that you are close to and that you trust to carry out your wishes. It is best to discuss this responsibility with them before you appoint them the executor of your will.

The Duties of an Executor

The personal representative that you choose or that is appointed by the law will have a number of important duties to carry out upon your death. This will include arranging the funeral, as well as dealing with property. Executors will deal with finding bank accounts, cancelling credit cards, filing any income tax returns, compiling a list of your assets and calculating any debts. In addition, they will distribute your property to the relatives and records will be kept of all the transactions that are completed.

One of the most important duties of an executor is to calculate the debts from your property. This must be done before any gifts are given out to the beneficiaries. This means it will be the remaining property after debts are paid that will be given out to relatives. Often, a personal representative will choose to release a Notice to Creditors and Claimants. This will mean running an advert in the local newspaper that will kindly ask any creditors that you have been involved with to come forward. It will be the duty of the executor to decide what claims are legitimate and to pay them accordingly from the estate. This can involve receiving written proof for their claim to be paid out.

All personal representatives have the duty to act prudently when it comes to dealing with your estate. This means they should maximize the assets that will be distributed amongst relatives. This can involve investing some assets if it will take time to deal with your affairs. It is also important to note that if a personal representative does not act in good faith in carrying out their duties, they can be sued.

Normally, it is expected for an executor to sort the affairs and the will within one year. This means all asserts should be ready to distribute to the relatives with 12 months of your death. This time period is called the executor’s year. If the assets are not ready after one year, the executor must provide a reasonable statement why this is the case and when the expected schedule is for distribution of the estate.

Expenses of the Executor

For any expenses that have occurred during the actions of their duties, personal representatives will be compensated. This will come from your estate. In addition, the duties of the personal representative can be complicated and take some time. This means that executors are paid a fee for their duties and this will be around five percent of the value of your estate.