Understanding Ontario's Intestacy laws
It may seem like finding a lawyer to get your will drafted is that extra tedious task that’s going to cost you money and time, but what is the point of working hard through your life and not be able to choose where your hard earned money goes afterwards? In a perfect world you’d know exactly when death is going to come knocking and you can spend your money on all the things that make you happy and all the people that you love. However, since you’re only riding along this adventure of life with no knowledge of when your ride is over, it might be worth a little bit of your time to make sure you plan for the unthinkable.
When you die without a will in Ontario, there’s default rules to determine who gets what you’ve left behind.
The basic rules seem pretty simple.
If you die without a will, your loved ones get in this order:
1. Your legal spouse (spouse by marriage only) gets the first $200,000.00, or can claim half of the net family property.
2. Anything over $200,000 is shared between your spouse and children.
3. Where no spouse or children, your parents get your stuff.
4. If no surviving parents, then your siblings take it (for the siblings who have passed, their children take too)
5. If no immediate family, then more complex rules are available to allow your extended family to inherit. (If this applies to you, ask your lawyer about ‘Consanguinity’)
Also, refer to the Succession Law Reform Act for more details.
At first glance, these default rules seem to protect your loved ones.
However, what happens in the situation where you have a child from a previous relationship? If you have less than $200,000.00 in assets and it goes to your spouse (the person you legally married), that child won’t get anything unless they hire a lawyer to file a dependency claim against your estate. Your child may not have the money to take care of themselves, let alone hire a lawyer, which would mean they are effectively left with nothing. If you have over $200,000.00 in assets when you die though, the remaining amount above $200,000.00 can then be split between your legal spouse and your child.
Or what happens when you’ve been in a common law relationship for over 20 years? Yes, everyone knows that’s your spouse and they may have even helped raise your children. However, they effectively get nothing because you guys didn’t bother with that pesky marriage certificate. Their only chance of trying to get anything is again to hire a lawyer and file a dependency claim. While dealing with your death, they’ll have to spend money they may or may not have, in order to be included in the family that they have been a part of for a long time.
It’s not unreasonable to want both your spouse and your children to be taken care of, but for that to happen, you’ll need a will. Without a will, only people who are legally related to you, or who are related to you by blood, stand a chance of inheriting your stuff.
How about situations where you haven’t talked to your family in decades but have built a chosen family around you? Or situations where your biological parent was never a part of your life? Under these rules, that bio-parent who was never a part of your life will be getting your stuff just because they were at the right place at the right time at the very beginning of your life. Regardless of the reason why you’re no longer in contact with them, it’ll be your default family that will get your stuff. As a result, that chosen family who has loved and shared your life with you will get nothing. Where you have a history of mental or physical trauma with your default family, this might not be ideal.
The point is that while default rules exist to allow your 'nuclear' family to inherit, they don’t protect your loved ones where your family is less traditional. If you at all want to have a say in where your stuff goes, get a will. With the right lawyer it doesn’t have to be a long process, or tedious or costly. Always Law is here to help.