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8 Events That Can Happen When Dying Without A Will

By: Vinay Thapliyal

Student-At-Law

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Did you know that approximately 51% of Canadians don’t have their wills? Let’s break down this percentage even further. Around 57% of the age group between 35-54 don’t have a will. An even more outstanding number, 78% of the age group between 18-34 haven’t even considered thinking about wills (Angus Reid Institute statistics). 


Dying Without a Will Canadians Statistics
Dying Without a Will Canadian Age Group


Legal Terms to Know

Issue(s)*i) a descendant conceived before and born alive after the person’s death, and

ii) a descendant conceived and born alive after the person’s death if certain conditions of subsection 1.1(1) of the SLRA are met. 
Intestate*Includes when dying without a valid will. 
Preferential Share*Includes a fixed amount of value entitled for a married spouse.


Why Should Canadians Be Concerned About Planning Their Will?

A Will is a legal document that allows you to decide who gets what part of your property and estate once you are deceased. By planning in advance, it allows you to stay in control. With the seriousness of the pandemic, Canadians are starting to recognize the importance of securing their future by protecting their property and estates.


How is an Estate Normally Distributed?

When someone dies with a valid will, the estate will distribute under the will’s directions. However, without a valid will, Ontario’s Succession Law Reform Act (“SLRA”) provides statutory provisions governing the estate distribution order.  


How is an Estate Distributed Without a Will?

When a person dies without a valid will in Ontario, it is called an intestate*, and Ontario’s SLRA sets out its estate’s distribution. The following will break down the application of the SLRA in different situations:


The 8 Events When Dying Without a Will

1. There is a Spouse but No Issue (children)

The legislation deals with the closest next-of-kin, the spouse. If there are no issues* (i.e., children), the spouse will be entitled to the entire estate (SLRA, section 44). 


2. Spouse and Issue (children)

How preferential shares are triggered

Under the SLRA, a married spouse is entitled to a preferential share*, currently set by regulation at $200,000. The preferential share excludes any jointly owned assets, contracts (i.e. life insurance), or designations (i.e. RRSPs). Instead, it exclusively deals with the deceased’s estate assets, calculated after all debts and liabilities have been subtracted (SLRA, section 45(4)). 

However, if the estate’s net value is less than the preferential share, the entire estate passes onto the spouse regardless of any surviving issue (children) (SLRA, section 45(1)). 

Balance of estate distributed

Suppose the estate’s value is higher than the preferential share of $200,000. In that case, the estate’s balance will be distributed between the spouse and the issue (children) under the following rules:

Under section 46(1) of the SLRA, where only one child survives, the estate’s balance is shared equally between the spouse and the child.

As per section 46(2), where there are two or more children, the spouse takes one-third of the estate’s balance, and the rest is divided equally among the children. 


3. There are Issues (children) but No Spouse

Suppose that there is no spouse but one or more children; the estate will be distributed equally among the issues (children). If the child or issue dies before the parent and leaves surviving grandchildren, the estate will be distributed equally among the grandchildren. 


4. There is No Spouse and No Issues (children)

If there is neither spouse nor issue and one or both parents are surviving, the parents will receive the entire estate, or if both parents are alive, it will pass to them equally (SLRA, section 47(3)).  


5. No Spouse, No Issue (children), No Parents

If there is no spouse, no issue (children), and no parents surviving, the estate will pass equally among the deceased’s siblings. If one of the siblings has predeceased while leaving a surviving child or children, the child or children will take the share to which the deceased sibling would be entitled.  


6. No immediate family

The SLRA highlights the next-of-kin chain’s flow where the estate has no spouse, issue (children), parent, or sibling, that the estate will flow to the nephews and nieces of the deceased. 


7. Next of Kin

As per section 47(6) and (8), if none of the above survives, the nearest next-of-kin of equal degree will share per capita as set out in the table of consanguinity. 


8. No Next of Kin 

Finally, section 47(8) states that the estate will become the Crown’s property where there is no next-of-kin. 


In Summary

Without proper estate planning, your estate’s distribution can be restricted by legislation. Thus, it is essential to plan for the future by retaining a legal representative who can help you draft a valid will representing your true intentions.


About TR Law Firm

At TR Law, we can help you navigate through the uncertainties of life by helping you prepare your will. Please contact us to set a virtual chat with our experienced lawyers or feel free to call us at (905) 463-2088 or email at info@pmlawyers.ca.

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