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When someone dies without a Will, it’s called dying “intestate”. When someone dies intestate, they don’t get a say in important decisions like how their assets will be distributed, who gets to be in charge of the process, and who will take care of any minor children. The rules about how assets are distributed differ depending on the situation. Here are some of the rules that apply to someone who dies without a Will in Ontario:
- A spouse and no children: The spouse gets everything.
- A spouse and children: The deceased’s spouse inherits the first $350,000 and the spouse and children share the remainder. If there is only one child, the remainder is split 50/50. If there is more than one child, the spouse gets 1/3 and the remaining two-thirds are split between the children.
- Children but no surviving spouse: Everything is split equally between children. If a child is not alive, but they have kids of their own who are alive (grandchildren of the person who died intestate), the deceased child’s portion is divided equally among those kids.
- No living spouse or children: Everything goes to the deceased’s parents (or surviving parent, if there is only one).
- No spouse, no children, and no parents: Everything is split between the deceased’s siblings (or the descendants of a sibling who is not alive).
In Ontario, if one common-law spouse dies intestate (without a Will), their surviving partner has no automatic entitlement (unlike legally married spouses). That’s why it’s essential for common-law partners to have an updated Will containing their wishes for what they want their partner to inherit.
A lawyer is not necessary to make a legally-binding Last Will and Testament in Ontario. In most cases, as long as the testator (person making the Will) is at least 18 and is “of sound mind”, they can make a legal Will.
Having said that, there are a few situations where someone may want to get in touch with a lawyer to make a Will, such as:
- If they want to exclude a spouse, child, or another dependant from their Will;
- If they want to distribute their assets unequally among their children;
- If they are in a second marriage/common-law relationship but have children from a prior relationship;
- If there is a family member who is receiving government disability benefits;
- If they own real estate outside the province that cannot be dealt with under an Ontario Will; or
- If they want to engage in sophisticated tax planning.
Generally, parents are the legal guardians of their children. If one of them passes away before the other, the surviving parent would usually continue to be the children’s legal guardian.
A parent (or other legal guardian of minor children) can name someone in their Will to take over that role in case they are the last surviving guardian of the children. If the last surviving guardian passes away (or if both guardians die at the same time), the person named in Will would assume the responsibilities of guardianship for a period of 90 days while the court determines who the permanent guardian should be. The court will usually place a lot of significance on who the deceased parents wanted to have as the guardian when making a decision about permanent guardianship.
Someone’s Will only takes effect once they are no longer alive. However, there are many cases where someone is alive, but is no longer capable of making decisions for themselves. For example, this can happen as a result of an accident or due to general cognitive decline that can occur with ageing. This is where Powers of Attorney (POAs) become important.
POAs are made by someone while they are still mentally capable. It is a document that names the people who would be authorized to make decisions on the person’s behalf if they are alive but are incapable of making decisions for themselves. There are two types of POAs in Ontario – one for financial matters (a Power of Attorney for Property) and one for personal and health care matters (a Power of Attorney for Personal Care).