stewart esten what happens to your property if you die without a will in ontario- (1)
TRANSCRIPT
People mistakenly think that the government takes your assets and estate if you die without a will. This is not true.
The laws that apply to distribution of the property without a will attempt to equitably distribute the assets of the deceased among the deceased party’s relative.
When a person dies without a will, someone, usually a close relative, must apply to the court to be appointed as the estate trustee.
If there is a dispute as to who should be appointed the matter must be referred to a
judge to appoint a trustee.
The Estate Trustee must identify and locate all of the assets and liabilities of the estate, and must ensure that liabilities of the estate
are paid.
The balance left over after payment of these liabilities forms the assets available for distribution from the estate.
In Ontario the Succession Law Reform Act and the Family Law Act intersect to create rights for the surviving spouse of the deceased.
The Family Law Act defines a spouse as a legally married person, and the term spouse
in this act does not include cohabiting parties or common law partners.
Under this Act a married spouse is entitled to receive one half of the amount by which the deceased’s net family assets exceed the net family assets of the surviving spouse.
This “equalization payment” ensures that the surviving spouse has the opportunity to
share equally any increase in the value of the property that the couple earned over
their marriage.
The surviving married spouse must elect to accept this payment OR to take what they are entitled to under Part II of the Succession Law Reform Act.
Under the Family Law Act, the married spouse also has the right to remain in
possession of the matrimonial home for a period of 60 days following the death of
their spouse, on a rent free basis.
Alternately, the Succession Law Reform Act gives all spouses (married and common law) a preferential share, being the right to receive the first $200,000.00 of assets from their deceased spouse’s estate.
In addition, they have the right to share in the balance of their deceased husband’s
estate.
The surviving spouse must choose between the entitlement to equalization and the property rights that they would receive under the Succession Law Reform Act.
The Succession Law Reform Act sets up a scheme to divide the estate of a person who dies without a will.
If the deceased had assets worth less than $200,000.00 at the time of their death their spouse will be entitled to the entire estate.
If the assets of the deceased are worth more than $200,000.00 then the remainder of the estate after payment of the preferential share will be divided as follows...
If the assets of the deceased are worth more than $200,000.00 then the remainder of the estate after payment of the preferential share will be divided as follows…
● If the deceased had a spouse and 1 child, they each get one half of the remainder of the estate
● If the deceased has one spouse and more than one child, the spouse gets 1/3rd and all of the children share equally 2/3rds of the remainder of the estate.
If a child has predeceased his parent, but would have otherwise been entitled to share in the estate, that child’s share will be divided among his own children
If the person who died intestate leaves no spouse, children or issue living at their
death, then their estate is divided amongst their parents
If they have no surviving parent it is then divided amongst their siblings equally.
If they have no brothers or sisters surviving them it is then shared amongst
their nieces and nephews and if they have no surviving nieces of nephews then it
gets distributed amongst their next closest next-of-kin.
Only when a person dies having no will, no spouse, child, issue, parent, sibling, niece, nephew, or next-of-kin surviving them will their property then “escheat” and become the property of the government.
If the deceased was legally or morally responsibly to provide support to
someone but did not make adequate arrangements for support, then the
defendant may bring a claim for relief before the court.
The judge may make an order for payment of same from the assets of the estate. The order may supersede the interests of a spouse or other noted above.
As an estate litigation law firm in Barrie, we at Stewart Esten appreciate the
importance of properly managing the inheritance of a loved one’s estate.
Creating a will can help relieve the burden of others stressing over the estate inheritance process after you pass.
Our lawyers can assist you in preparing wills and Powers of Attorney to protect
you and your family.
Contact us to learn more.
Stewart Esten has a litigation lawyer on staff that knows how to protect your estate.
(705) 728-5591