What Happens If I Die Without a Will?

Written on behalf of Arbesman Hamilton LLP

A will is a legal document, through which a person directs how his or her estate will be distributed after their death.

A will is arguably one of the most important documents that a person will prepare during their lifetime. It is crucial for everyone to have a carefully drafted, up-to-date, and valid will that has been reviewed by a lawyer, as the consequences of dying without a will (i.e. dying intestate) can be significant.

Reasons to Have a Valid Will

  1. Control of Your Estate: a valid will is the best way to ensure that your estate will be distributed pursuant to your wishes, and can minimize conflict amongst heirs and beneficiaries.
  2. Estate Trustee: a fundamentally important aspect of a will is choosing an estate trustee. The Estate Trustee is generally a family member, friend, or other trusted individual(s) in your life who will be responsible for dividing and distributing your estate after your death. A will allows you to choose that individual in advance to eliminate any potential problems, rather than having a court appoint a trustee where there is no will, or where a trustee is not chosen.
  3. Delays and Legal Fees: if someone dies without a will, their family may need to go to court to seek an order appointing someone as the Estate Trustee. Estates generally cannot be distributed in the absence of a trustee, and, until a court appoints a trustee, all assets will most likely be frozen. This appointment process can delay the ultimate distribution process, since court timelines and strict procedures must be followed. Court intervention can also lead to high legal costs, which are borne by the family (either directly or through a diminished inheritance when fees are paid by the estate). Failure to appoint an Estate Trustee in advance may also lead to conflict among friends and family members with respect to which one of them would be best suited to be the Estate Trustee. Many such potential challenges can be avoided with a valid will.
  4. Providing for Your Children: It is crucial for parents to prepare a valid will to address important details about their children’s well-being and to provide for their continued care. If both of a child’s parents are deceased, the courts are required to make a decision as to the guardianship of the child. This decision must be based upon what the court determines to be the “best interests of the child”. A valid will that sets out a parent’s opinion as to the “best interests” of their child, through the appointment of a guardian and trustees to manage the child’s inheritance, is an important and persuasive factor in the Court’s decision making process.

If you die without a valid will, Part II of Ontario’s Succession Law Reform Act (SLRA) will govern how your estate will be administered and how your assets will ultimately be divided. We will explore the details of the SLRA in a future post, so be sure to follow our blog to keep up to date with important developments and trends in estates law.

In the interim, if you would like to proactively plan for your future, contact the Toronto wills lawyers at Arbesman Hamilton LLP. Our experienced team can help you ensure your long term goals are met, and that you, your estate, and your loved ones are protected. Contact us online or at 416 481 5604 to book a consultation today.