Dying Without a Will in Canada
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Written by The Editors |
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When someone dies without a will, or a will cannot be located, or is
located but is deemed invalid, the person is said to have died
intestate. Provincial laws deal with this situation, as each province
has a potential interest in the deceased person's estate.
The assets owned by the deceased at time of death are known as that
person's estate. Any debts the person owed need to be paid out of the
estate, and anything remaining (the "residue" of the estate) can be
divided among the heirs of the deceased person. Note that taxes are a
debt.
So far, this is the same as what happens when someone dies with
a valid will. The difference is, when you die with a valid will,
distribution is usually done by the person you appointed as your
executor, according to the wishes you expressed in your will.
Administration
When a person dies intestate, family members may apply to the courts
to act as the estate administrator (sometimes know as the estate
trustee). If the court provides a certificate of appointment, the
administrator must identify and settle all debts in the estate. If
anything remains, the administrator must then determine how to divide
the residue and must try to locate and obtain the agreement to the
division from legal heirs (the usual order or priority is: spouse,
children, parents, brothers and sisters, and more distant family such as
nieces and nephews).
If no member of the immediate family of the deceased is willing to
act as administrator, or none is able to take on the task, then the
court may appoint a trust company to undertake the task.
Problems
If the assets of he deceased person have some value, the risk of
conflicts among potential heirs is high. In the absence of a will, the
individual acting as the administrator of the estate is likely to be
confronted with emotional claims ("I was always her favorite", or "He
promised me I would get ...") and there is a strong possibility that
cooperation in the process will not happen.
Solution
Write your will! We all like to think we will live a long time, and
many of us have a superstitious fear of preparing a will. Reality,
however, dictates that accidents and sudden, fatal illness will take
some people much sooner than anyone would have predicted.
Once you start acquiring assets of value — a home, a pension plan,
investments, and similar — you should prepare your first will. Review
your will once a year after you write it (a good time is when you are
doing your annual tax return and thinking about your assets), and update
it as needed.
A small effort on your part may save your family a lot of unnecessary pain and conflict.
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