What Happens If I Die Without A Will?
Will-writing can sometimes feel like a taboo subject. After all, talking about what happens when you die is a pretty uncomfortable thing to do!
But that fear often keeps people from doing something everyone needs to do. Truth is, making a Will isn’t the scary part—it’s much more frightening to consider what happens if you die without a Last Will and Testament (Will) in Canada.
What happens if you die without a Will in Canada?
If you don’t have a Will when you die, it will be said that you have died intestate. Dying intestate means you won’t get a say in important decisions like how your assets get distributed or who will look after your children (if you are the last living legal guardian at the time of your death.) For the ones you leave behind, it also means lots of time, effort, and money spent wrapping up your affairs.
You don’t get to decide how to distribute your assets
Wills are important because they let you choose who gets your assets when you die.
If you die without a Will, your assets will be distributed according to the laws of your province (or territory.) By not having a Will, you give up all control when it comes to where your assets end up. And instead, put that control in the hands of the government.
The laws of the province don’t take into account the particulars of your situation. The law applies the same to everyone. These laws allow very little flexibility and rarely consider the unique circumstances of each family. Every province’s laws differ a little, but most share the same basic characteristics in terms of who will inherit what if you die without a Will:
If you have a spouse but no children
Your spouse will inherit your entire estate.
If you have no spouse or kids
Your parents (or a sole living parent) will inherit your entire estate.
If you have a spouse and children
Your spouse gets a specific portion of your estate (sometimes known as the “preferential share”), and your child(ren) share equally the remainder. This rule varies, and the proportions each individual gets often depends on the size of your estate.
If you have any kids but no spouse
Your estate gets divided equally among them.
If you don’t have a spouse, children, or parents that are alive
Your brothers and sisters inherit and share your estate equally. If you have no siblings, your estate goes to your nieces or nephews equally. If you don’t have nieces or nephews, your cousins inherit your estate.
When provincial law isn’t what you would have wanted
For example, if you have a surviving spouse but no children, you may not want your spouse to get your entire estate. Maybe you want them to share your assets with your parents, siblings, or other family and friends. Without a Will, you don’t have that option. You might also want some of your personal property to end up in the hands of specific people – family, friends or other relatives.
Or, if you’re in the middle of a separation but not yet divorced, the courts still see you as married by law. Even if you wanted to leave your estate to other family members and friends, your estranged spouse could end up getting everything.
Also, not every provincial government recognizes a common law spouse as a legally married spouse. Even if you’ve been together for 30 years in a relationship akin to marriage, it’s possible that your spouse might not be entitled to anything from your estate.
Letting the courts decide how to distribute your assets often leads to family tension. Disagreements around who gets what can lead to arguments and even litigation.
You don’t get to choose who will care for your children
Another good reason to have a Will is that it enables you to appoint a guardian. A guardian is someone who looks after your child or children if you die before they become adults and you are the last surviving guardian (for example, if your partner is also no longer alive.)
If you have a surviving spouse, in most cases they will care for your children. But if both you and your spouse have died and you don’t have a Will that names a guardian, the courts make the call for you.
The court chooses the person they think will be best suited to act as your children’s caretaker. But because you haven’t made your wishes known, you won’t get a say.
Guardianship isn’t always a permanent appointment
In some provinces (like Ontario), the appointment of a guardian is a temporary appointment. In Ontario, your guardian assumes their role for 90 days. They need to apply to the court in that time if they want to be named the permanent guardian of your minor children.
The court makes the determination based on the best interests of the children. Unless there is a significant reason why the individual you chose would not be the right one for the job, if you name a guardian in your Will, it’s extremely likely the court appoints that person. When someone dies without a Will, it’s completely up to the court to decide.
Of course, it’s possible someone may contest your decision in court. For example, you might appoint your parents as guardians, but your spouse’s parents might also really want to care for your children. Or you may end up with relatives from each side of the family that step forward.
If you and your spouse aren’t alive and someone contests your decision, the information in your Will carries a lot of weight. After all, you’re the best person to decide who should take care of your child.
Your loved ones could spend a long time sorting out your matters
When you are deceased, your financial obligations don’t automatically disappear. Everything you own and owe forms part of your estate.
If you die without a Will can leave your next of kin in an administrative nightmare. Who will pay your loan payments? Who will close your credit card accounts? Who will pay your taxes? (Yes, you’re even taxed in death!)
Spoiler alert: it’s your family.
Someone needs to apply to be your executor/estate trustee
The first thing your next of kin needs to do after you are deceased is apply to act as your executor (since you don’t have a Will appointing one.) This individual is sometimes called an estate trustee.
An executor/estate trustee has the power and responsibility to wrap up all the loose ends. Their duties include paying your taxes and debts (out of your estate), closing your bank accounts, and tying up any other business you left unfinished—including selling real estate property to pay your debts, if necessary.
When you make a Will you get to appoint the person (or people) that you think could handle the job. Your executor/estate trustee should be a person you trust, not only with your personal wishes but also with the financial side of things. If you die without a Will, you won’t have the opportunity to choose who that person is.
You work hard to take care of your family your whole life. Carving out the time to think about and write your Will is the best way to make sure your loved ones are cared for after your death.
Important terms to know
Here is a glossary of all the bolded terms in this article.
Intestate
Dying without a valid Will. If you die intestate, your assets will be distributed according to the default rules of the province where you live. The opposite of dying without a Will (dying with a Will) is called dying testate.
Assets
Anything of value, tangible or intangible, that the testator owns. Assets can include cash, bank accounts, real estate property, cars, stocks, investments, and even digital assets like electronic photos and bitcoin.
Guardian
A person who has the legal responsibility to take care of a minor. If you name a guardian in your Will, they will care for your children if you die before your children reach the age of majority. If you appoint more than one guardian, they are called co-guardians. You can also appoint guardians for adults with disabilities.
In Ontario, a guardian appointed by your Will assumes that legal status for 90 days only. They must apply to the court to become the permanent guardian before the 90 days are over.
Executor / Estate Trustee
A person you choose to carry out the wishes in your Will. If you appoint more than one executor, they are called co-executors.
