by Chadwick Boyd
I am sure that you have heard that ad on the radio that says something like: “the government decides where my assets go”. That is not entirely true, but not entirely wrong either. In Ontario, if you die without a will, your assets are distributed to your beneficiaries according to the Succession Law Reform Act.
Whew! No worries, right? Wrong, especially if you are married with children, or are living in a common law relationship.
If you die without a will, and you are legally married without children, your surviving spouse will receive everything. But, if you are legally married with children, the Act says that your assets will be divided between your surviving spouse and children. Your spouse will receive the first $200,000 of your estate (the preferential share) and the balance of your estate will then be divided between your spouse and children. If you have one child, your spouse will receive 50% of the balance and your child will receive the remainder. If you have two or more children it is worse, because then your spouse will only receive 33% of the balance and the remainder will be divided between your children. On top of that, your children will be entitled to that money when they turn 18.
It gets worse if you are living in a common law relationship and you die without a will. Your surviving partner has no entitlement to your estate under the Act. So where do your assets go then? The Act says your assets will go to your surviving children, if any. If you have no surviving children, then the assets will go to any surviving grandchildren. If you have no surviving grandchildren, your assets will go to your surviving parents. If your parents died before you, then your assets will go to your surviving siblings, or their children if they have died before you. If you have no surviving nieces and nephews, your assets will then go to any surviving next of kin (e.g. cousins) by degree. Finally, if you don’t have any next of kin, Her Majesty will be the lucky recipient of all of your worldly possessions.
Although the Act says that your surviving common law spouse will not be entitled to anything if you die without a will, there is a chance that they could still receive something if they make either a dependency claim or an unjust enrichment claim against your estate. However, making those claims will take money and, more importantly, time, and the outcome of either type of claim is not as assured as providing for your common law partner in a will.
The process of getting a will done is much easier and quicker than most people think. It normally takes about two weeks to a month from when you first meet with a lawyer to having a signed will in place and in total will take no more than an hour of your time.
For these reasons and many more, if you do not have a will already please talk to a lawyer as soon as possible.