Consequences Of Not Having A Will In Canada

A will is a legal document expressing your wishes to distribute your assets and property after your death. It also allows you to name an executor, who is the person responsible for carrying out your wishes, and a guardian, who is the person who will take care of your minor children if you die. 

Drafting a will with the help of a professional wills lawyer can give you peace of mind and ensure that your loved ones are taken care of according to your preferences. However, many Canadians still need to have a will or have an outdated one. 

In this blog post, we will explore some potential consequences of not having a will in Canada and why making one as soon as possible is important.

Intestate Succession Laws

If you die without a will, you are considered to have died intestate, meaning your estate will be distributed according to the intestate succession laws of your province or territory. 

These laws vary from jurisdiction to jurisdiction, but they generally follow a similar pattern: your spouse and children will receive the largest share of your estate, followed by your parents, siblings, and other relatives. 

However, there are some important differences and limitations that you should be aware of, such as:

Common-law Spouses

In some provinces, such as Ontario, Quebec, and Alberta, common-law spouses are not recognized as legal heirs under the intestate succession laws, meaning they will only inherit something from your estate if you have a valid will that names them as beneficiaries. 

Common-law spouses are treated the same as married spouses in other provinces, such as British Columbia, Saskatchewan, and Manitoba. They will inherit a portion of your estate according to a formula. 

However, this may not reflect your actual wishes or your partner’s needs, especially if you have children from a previous relationship or other dependents.

Also Read: Understanding Probate In Alberta

Delays And Expenses

Another consequence of not having a will is that it can cause delays and expenses in administering your estate. Without a will, your estate will have to go through Administration (as opposed to the probate process to validate your will), which is the legal process of validating your death and appointing an administrator to manage your estate. 

Administration of an estate without a will can be lengthy and costly, especially if your estate is complex or there are disputes among your heirs. 

Some of the potential issues that can arise during the Grant of Administration process are:

Appointing An Administrator

Without a will, you do not have an executor, the person you choose to carry out your wishes and handle your estate. Instead, the court will have to appoint an administrator, usually a close relative or a friend, who applies for the role.

However, this may not be the person you would have chosen or trusted to manage your estate. Moreover, the administrator will have to post a bond. This security deposit guarantees the performance of their duties and obtains letters of administration, which are the official documents that authorize them to act on behalf of your estate. 

These steps can take time and money and may require the involvement of a wills and estate lawyer. 

Paying Taxes & Debts

With a will, you have a say in how your taxes and debts are paid. The administrator will have to file your final income tax return, pay any outstanding taxes and debts, and obtain clearance certificates from the Canada Revenue Agency and other creditors.

This can be a complicated and time-consuming process and may reduce the amount left for your heirs. Moreover, if your estate does not have enough assets to cover your taxes and debts, your heirs may be liable for the shortfall, depending on the nature of the debt and the relationship with the creditor.

Distributing Your Assets

You do not have a say in how your assets are distributed without a will. The administrator will have to follow the intestate succession laws of your province or territory, which may not reflect your wishes or the needs of your heirs. 

Moreover, the administrator will have to locate and contact all of your heirs, which can be difficult and time-consuming, especially if you have a large or dispersed family. Furthermore, the administrator will have to deal with any claims or disputes that may arise among your heirs, which can be stressful and expensive and may require the involvement of a lawyer or a mediator.

About Us

At Nexus Legal, we are more than just a law firm. We are your trusted partners in wills and estate law. Whether you need help making a will, updating your will, choosing an executor, or planning your estate for your business, we have the expertise and experience to guide you. We offer open communication and tailored solutions to meet your needs and goals. 

Contact us today to learn how we can help you secure your future and legacy.