Stieg Larsson, author of the Millennium Trilogy of crime novels, ultimately died without a Will.  This left his long term lover Eva Gabrielsson without any claim to his Estate which under Swedish law would pass to his father and brother.  Claims made by Ms. Gabrielsson suggest Mr. Larsson had little contact with his father and brother. 

According to Leave a Legacy only 30% of Canadians currently have an up-to-date legal Will, leaving about two Million Canadians who, in the next two decades, will pass away without a valid Will.

Why should you avoid being among this statistic?

Each province and territory in Canada has rules which provide for who is to receive an estate when a person dies without a valid Will.  Commonly referred to as the ‘rules of intestate distribution’, those rules may end up benefiting the wrong people, at the wrong time and in the wrong way. 

For instance, in Ontario common law spouses are not considered spouses for purposes of the rules of intestate distribution.  Even where there is a legally married spouse, s/he may not get the entire estate if the deceased person also had children.  As it stands at present, in Ontario if a married person dies without a Will, with a spouse and descendants, the rules provide that:

• the married spouse gets the first $200,000,
• if there is only one child, the married spouse and child split the balance,
• if there are two or more children, the married spouse gets one third of the balance and the children split the remainder evenly.

There are other rules to address other circumstances such as there being no descendants.  Ultimately though if there are no next of kin, the estate escheats to the Crown.

Added to the arbitrariness of this scheme, is that without a valid Will the interests of minors are required to be paid into Court and will be managed and administered on behalf of the minor by a government representative until s/he reaches the relevant age of majority.  Upon reaching the age of majority, currently age 18 in Ontario (19 or 21 is the age of majority in some other provinces), the minor will be entitled to receive their inheritance.  Some parents may find this too young to receive an inheritance.

Without specific directions regarding an asset of special significance, like the family cottage, it may have to be liquidated.

Perhaps most important though is that no one has the legal authority to deal with the estate until an administrator is appointed by the court.  This will involve a court application.  This will cost money and delay which may create hardships if the family is not able to use estate assets or if assets have to be dealt with or decisions made.

As you can see, having a Will allows an individual to dispose of his or her assets on death in a way that takes advantage of opportunities for the effective transfer of those assets in a manner which minimizes, to the extent possible, income taxes and other administrative fees and addresses the particular needs of the individuals’ beneficiaries.  So don’t wait.  Avoid becoming a statistic.

Happy Thinking

Corina S. Weigl