Further to our post, What is a Will and why do I need one?, the below is a review of issues to consider should someone die either with an invalid Will or without a Will altogether.
If someone passes away without having a Will, they are deemed to have died intestate, simply meaning that they died without a Will. Similarly, if someone’s Will does not meet the legal requirements for a Will and, after that person has died, their Will is determined by a Court to be invalid, then, notwithstanding such person’s estate planning intentions set out in their invalid Will, they too are deemed to have died intestate. This means that any gifts to their beneficiaries set out in their invalid Will are not enforceable.
If someone dies intestate, then the laws of intestacy, as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, determine how their estate will be distributed. A person can also die partially intestate, meaning that, though they have a valid Will, a part of their estate is either not dealt with by their Will or a gift in their Will is left to a beneficiary that no longer exists. This leftover part or gift (referred to as a gift-over) is also dealt with by the laws of intestacy.
If a person dies wholly intestate (either because they do not have a Will or have a Will that is invalid) or partially intestate (because they have a gift-over without a beneficiary) then the laws of intestacy provide that the person’s estate, or the gift-over in the case of a partial intestacy, is distributed in specific and descending orders, as applicable depending on who survives them, as follows:
- their spouse alone (if they have no surviving children);
- their spouse and their children, with a $200,000.00 preferential share of their estate first going to their spouse;
- their children (if they have no surviving spouse);
- their parents (if they are not survived by any of the above);
- their siblings (if they are not survived by any of the above);
- their nephews and nieces (if they are not survived by any of the above);
- their next of kin (if they are not survived by any of the above); and
- if they are not survived by any of the above, then their estate becomes the property of the government (also referred to as the Crown), subject to the Escheats Act, 2015, S.O. 2015, c. 38, Sched. 4.
Without a valid Will, following an individual’s death, their estate will be distributed without consideration to any estate planning intentions that they may have, or any specific gifts that they may want to give to persons or entities. Furthermore, while a Will directs how an individual’s estate shall be distributed, it also appoints the executor and estate trustee, who will be in charge of administering the estate. Without a Will, someone on behalf of the estate will have to make an application to Court for a Certificate of Appointment of Estate Trustee Without a Will to be appointed as the estate trustee and to distribute the estate in accordance with the laws of intestacy. This application may be subject to challenge(s) by others and in any event, will require that the applicant demonstrate to the Court that, absent a Will, they have the legal right to administer the deceased’s estate. This adds additional complications, and often costs, on the already onerous duties of administering a person’s estate.
It is therefore recommended that individuals consider how and to whom they want their estate to be distributed upon their death, and to speak with an estates lawyer regarding their estate planning intentions. Failing to do so may not only thwart a person’s intended estate distribution, but may also cause unnecessary delay and aggravation on any distribution of their estate to their loved ones upon their death. Consider that if an individual has an invalid Will, then this is unlikely to be discovered until after that person has passed away. Should this occur, the deceased person’s Will can no longer redrafted and the person is therefore deemed to have died intestate, leaving the deceased’s family with the task of seeking the Court’s approval to apply the laws of intestacy to the deceased’s estate.
If you would like to speak with an estates lawyer at Parente, Borean LLP, please contact email@example.com.