intestate

If you die without a Will, you are deemed to have died “intestate”. This means that all of the things you could have done in your Will are now done according to Provincial law, and by the courts. Your Executor and guardians for your children will be appointed by a judge. Your estate will be divided according to the laws of the Province, and contrary to popular belief, it is actually quite unusual for everything to pass directly to your spouse. In extreme cases, if there is no family, your estate passes to the government.

Estate Planning When Expecting: A Guide for New Parents

Adding a child to the family—whether that be from having a baby, adopting a child, or gaining a stepchild—is an incredibly exciting time in your life. There’s so much to think about. Scheduling birthing classes, planning the new nursery, picking out the right car seat, baby-proofing the house, and choosing your baby’s health care provider are just a few of the things on your mind. One important item that might not be on your list but should be is that new parents need an estate plan.

We understand that the desire to protect your child from harm is immense. The problem is that life is inherently unpredictable. You can never truly know what unexpected events might occur that will affect your child in life. It’s not something anyone wants to think about, but wouldn’t it be best to put a plan in place just in case? Estate planning is about protecting the people you love and doing the best you can to make sure they will be taken care of, no matter what happens or when it happens.

Do the people closest to you know what to do if something happens to you?

There’s no point in having an outdated Will, or worse, no Will at all. Because let’s face it: children pretty much change everything, and if the worst should happen to you and your partner, you want to make sure your children’s future is secure. By creating a Will now, you can help you make sure your child is cared for in the event that you pass away unexpectedly—meaning your child has a legal guardian and sufficient funds—and that your estate passes on to the right person.

Estate planning is at least as important as car seats and bike helmets for the safety of your children. You do not want to put off creating a Will, only to have it be too late due to an unexpected tragic accident. 

Here are some important reasons new parents need an estate plan:

Protecting Your New Family

Who Will Take Care of Your Child After You Are Gone?

When you’re pregnant, the last thing you want to think about is the idea that you won’t be around to raise your child, but it’s important to consider what would happen to your child should the unthinkable happen.

Specifically, if something happens to you and your spouse/partner, who will raise your child? When creating your Will with your child in mind, it is important to begin considering who you want to retain guardianship of your child to ensure that your child will always be taken care of by the people you want, in the way you want, no matter what happens.

The best way to guarantee that your child is raised by someone who shares your values or beliefs and understands what you would want for your child is to name a specific person as guardian in your Will. Spend the time during your pregnancy thinking about who you’d want to raise your child if you’re unable, then ask that person if they’d be comfortable accepting the position. We understand that it can be a daunting and emotional conversation, but deciding on a guardian for your child is one of the most important tasks you’ll ever do. There are a lot of things to consider, for example:

  • Does the location of the potential guardian allow your child to stay close or at least connected to their family, friends, school and activities or would your child have to make major changes in those areas?
  • Will the lifestyle of this person make it possible for them to parent your child the way you want?
  • Does the guardian have the physical ability and energy to care for your child?
  • Does the guardian have the ability to emotionally support your child through an extremely difficult time?  
  • Do the religious and moral beliefs and political leanings of the guardian line up with those of your family?
  • Do the age and health of the person make it feasible for them to parent your child? (Tip: elderly parents may not be the ideal choice)
  • Does the potential guardian have a parenting style you believe would work for your child? Are you comfortable with their views on education and discipline?
  • Is the potential guardian someone with whom your child already feels comfortable?
  • If the potential guardian has other children, how would your child fit in?
  • If the person is married, are you comfortable with their spouse also raising your child?
  • Does the guardian have any legal reasons why they can’t take on your child?

Once you’ve determined who you want to be the guardian and they’ve accepted the position, you must legally document your wishes. We cannot stress enough how critically important it is for expecting parents to designate guardians in their Will.

Parents who delay naming a guardian or choosing an executor usually do so because they are deadlocked over the decision—they cannot agree on that “perfect” choice. Get comfortable with the fact that there is no perfect choice. You can always amend your choice if you change your mind. However, if you don’t choose a guardian, and you pass away or are unable to care for your child, the court will appoint a guardian for you and the choice could be someone who you would never want to raise your child. Oftentimes, they’ll start by considering family members, but do you really want a judge to determine who will care for your new baby or appoint someone that you disapprove of? This can cause your child additional trauma when they’re already going through a trying time.

It is important to remember that even if you already have children with potential guardians named, you still need to name a guardian for your new child.

Naming Beneficiaries: Is Your Child Financially Secure?

Many parents of minor children become confused as to how to leave assets to their children in a Will—after all, it’s not like a toddler can exactly be a homeowner. The best option is for the money and assets to be put in a trust for the benefit of your minor child. You name your child as the beneficiary and name a “guardian of the estate”, also known as a trustee, who will distribute and manage the trust. This option gives you more control over how much and when your child receives portions of the assets. For example, you could decide that once your child is a young adult, you want to give a certain percentage of assets to them at specific ages or when they meet certain milestones such as a college graduation or marriage.

If your stepchildren or adopted children are a bit older, you may want to start thinking about what items in your home mean the most to each of your children and consider leaving that item to them in your Will. For example, is there a specific necklace that one of your children has become attached to and hopes to one day inherit? It may be important to you to make sure they receive that item when you pass away, and the best way to ensure this is to put it in your Will. No matter how big or small your estate, naming beneficiaries for assets can eliminate pain, confusion and grief. 

Planning for an Accident or Illness

Who would pay the bills if you become unable to make financial decisions, even for a short period of time? By creating a financial power of attorney, you’ll name someone who can act on your behalf in regard to your financial or legal matters. This way, if you become incapacitated your rent or mortgage could still be paid and other regular expenses for caring for your child could also be covered.

Before an unforeseen situation presents itself, make sure your estate plan includes an updated healthcare proxy, also referred to as a living will or representation agreement. A healthcare proxy outlines how you want your family to proceed should an emergency take place and who would make medical decisions for you if you were unable to make those choices for yourself. If a medical emergency does happen, having your wishes documented will make an already high-stress situation easier to manage. This gives you peace of mind that you’ll receive necessary care and prevents potential conflict among family members that could be stressful to your child.

How Do You Provide for Unborn Children? What if Another Child is Born After Your Establish Your Estate Plan?

In terms of how an estate plan can provide for unborn or “after-born” children, there are a few drafting techniques that can address this issue.  For example, your Will would typically refer to your current children by name and their date of birth. However, when making a Will it is not necessary to specifically name the people whom you would like to inherit your estate. For example, your Will can be drafted in such a way so as to make provision for groups of persons to inherit your estate in the event that you die.

In the section or article of your Will that provides how your estate and assets will be divided, you could simply indicate that your estate and assets will be divided into separate and equal shares for each of “my surviving children”. That would mean that whatever children you have at the time of your death—including any children born to you, or adopted by you, after the date you sign your Will—would receive a share of your estate and thus the Will would work as you intend, even if you did not amend it after having a new child.

When including future beneficiaries in a Will it is important that their identity is clear. The description “my surviving children” is sufficiently clear to be understood who is intended to benefit from a Will. Descriptions which are vague or unclear like “my favourite children” should be avoided as a bequest made to such a group of persons will probably be deemed void by the court.

Estate planning may be difficult to think about, but it is an essential step for every new parent. Above all, it is about ensuring that your child is cared for, your wishes are honored, and your legacy is preserved, no matter what the future holds.

We understand the unique challenges and concerns that come with parenthood, and we’re here to ensure that your estate plan reflects your deepest wishes and aspirations for your loved ones. By using an online estate planning tool like Legal Wills, you can create digital estate planning documents entirely online and make amendments to your existing estate plan as your family changes. This can help ease your worries with the certainty that you have a comprehensive plan in place even if something unexpected happens up the road.

Understanding the words used in your Will

Are you thinking of writing a Will? Have you perhaps heard of terms like “Executor”, “Bequest”, “Living Will” and are now worried that the process of writing your Will may be beyond you? You may be wondering whether it is possible to write a Will without understanding all of these legal expressions. After all, that’s why many people hire a lawyer to prepare the document for them.

You may be surprised to learn that you really don’t need to understand any of these legal words in order to use a service like LegalWills.ca. However, the words may appear in your final Will, and in that context they will make sense to you. We also explain some of the key definitions when you are working through the service. But you may be interested to learn exactly what some of these words actually mean.

Perhaps you wrote your Will with a lawyer. You have had it witnessed and now it’s stored at your lawyer’s office but you still have no idea what it says. Don’t worry, this isn’t an uncommon situation. Many people go through the whole task of writing a Will and signing it when they don’t fully understand what it says.

Unfortunately in today’s legal world, estate attorneys don’t always have sufficient time to go over every detail and word of a Will. This is partly because their time costs money, but also because writing a Will is an everyday common practice to them. Therefore, they often neglect to go over the basics with their clients. An experienced and understanding estate attorney should always be willing to go over every detail of your Will and explain any confusing language so that you feel comfortable when signing it. However, the legal environment can be intimidating and attorneys may assume that you understand the legal terms when in fact you don’t.

Understanding legal words in the Will

At LegalWills.ca we almost fall into the same pattern ourselves when we talk to customers about the “Executor” and the “Beneficiaries”. We forget that some people may be hearing these words for the first time. They are words that are rarely, if ever, used outside of the context of writing a Will.

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Frequently Asked Questions: Make a Will Week & Month

If you’re reading this, chances are you’ve heard of Make a Will Week or Make a Will Month. But what actually is Make a Will Week? Why did it begin? What’s the point and what does it mean for you? Several Provinces recognize their own specific week or month annually to promote the same message: you need to make your Will. In the following article, we’ll go into why this is so important and answer several of the questions that you may have on Make a Will Week and Make a Will Month.

Make a Will Week & Make a Will Month | FAQ

Make a Will Week and Make a Will Month are annual awareness campaigns, scheduled by their respective provinces, with the goal of informing and educating adults on the need for a Will.

“Determining how your wishes are expressed is a critical decision that impacts families and loved ones”, stated Lynne Vicars, President of the Ontario Bar Association – the originators of Ontario’s Make a Will Month.

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The Ultimate Guide to Preparing a Will – 2024

Introduction to Preparing a Will

Everybody should have a Will. Not making a Will is unfair to those you leave behind. Even if your plans for estate distribution are simple and you do not have many assets, it is still much easier for the people that you leave behind to work with a Will than to resolve the estate of a person who has died intestate (without a Will). If you do not feel that you have significant assets now, remember that your Will only comes into effect when you die, not now, and you cannot possibly predict how large your estate will be when your Will is required. Preparing a Will is one of the most important tasks you can undertake if you have loved ones. Sadly, most of us put it off until it is too late.

By law, any competent adult can make their own legal Will; the law does not require you to have an attorney or a lawyer, to do this. A Will does not need to be a complicated document; it simply has to clearly state your wishes for the distribution of your estate.

Guide to Preparing a Will

123rf

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Probate in Canada – What it is, what it costs, how to reduce fees.

Must my Will go through probate?

To understand whether or not your Will needs to go through the probate process, you have to understand what happens after you have died.

Hopefully you have written a Last Will and Testament.

In your Will you name an Executor. This is the person that you entrust to gather and secure your assets. Your Executor then has to distribute the assets according to the instructions in your Will.

The Executor must collect up everything you own, keep it safe and secure until everything has been collected, and then pass these possessions and financial assets to your beneficiaries.

Probate
Copyright: aihumnoi / 123RF Stock Photo

Let us imagine a scenario.

Imagine your Executor going to your bank and presenting them with the Will. They explain to the bank that you have died and they show your Will to the cashier. The Will names your Executor. The person you have named shows their ID and they request the contents of the bank account. This person could even be one of your own children.

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Making a Will in Canada – the 2024 Complete Guide to your Options

What is the purpose of a Will?

Your Last Will and Testament allows you to speak after you have passed away. It does absolutely nothing and has no powers whatsoever all the time you are alive. But as soon as you die your Will has two key functions: it allows you to make key appointments and it allows you to describe the distribution of your assets. These assets include money, possessions, houses, investments, everything that you own. Making a Will is one of the most important responsibilities of every adult, and it should not be put off until a distant day in the future when you are “old”.

You should not think of making a Will as a once-in-a-lifetime event. You should always have a Will in place that reflects your current situation. You should write your first Will as soon as you are an adult, and then update it throughout your life as your circumstances change.

Your Key Appointments

By Making a Will you can make two key appointments.

Your Executor

This is the person you entrust to carry out the instructions in your Will. They have the responsibility to arrange your funeral, gather and secure your assets, and then distribute them according to the instructions in the Will. It is a very important appointment. Continue reading →

Dying Without a Will

What is intestate succession?

If a person who dies does not have a will, then the person is said to have died intestate. This means that the person’s assets and liabilities are handled by the intestate laws of the province where the deceased resided – when he/she died. The intestate laws vary from one jurisdiction to another. Typically, if the person dies without a will, their assets are frozen until the court combs through every detail of their estate to make a decision regarding the manner in which a person’s possessions will be allocated. For the ones you leave behind, this process can be time-consuming, exhausting and usually involves more money spent wrapping up your affairs – all of which is easily avoidable. More importantly, dying intestate means that the wishes of the person who died may not be fulfilled.  Many practical issues such as providing for children with special needs may not be addressed.

In short, not having a will means losing control over some of the most important decisions a person will ever have to make. Wills are important because they let a person choose who gets their assets when they die – saving time and headaches for loved ones.

Which items don’t pass through a will?

First, it is important to note the many assets do not pass through a will. This is especially true if the assets were properly titled. To determine how the property was titled, the original documents will need to be located. Typically, these documents are in a safe deposit box or a strong box. Some of the assets where a will would not make a difference are:

  • Life insurance proceeds. These assets are payable to the people named as beneficiaries
  • Assets held as tenants held jointly or as tenants by the entirety. Assets such as homes that are owned by a husband and wife are normally held as tenants by the entirety – which means when the first spouse dies the home automatically goes to the surviving spouse.
  • Community property with right of survivorship. In community property states, property held with right of survivorship is similar to joint property and tenants by the entirety property. The assets go to the survivor without any need for a will.
  • Some retirement benefits. RRSP and some other retirement plans are paid to the named beneficiary.

Who handles the estate?

One of the main reasons for having a will is deciding who will manage the estate. The person who handles the administration of the estate is normally a trusted person who is good at money management and at meeting deadlines while also respecting the needs of the family members and beneficiaries. A spouse or a child can be named an executor. A non-relative or even a non-person such as a bank can be appointed executor.

It there is no will, the deceased hasn’t set out their wishes for who they trust to distribute or manage their estate. This means the court has to authorize someone to close the financial affairs of the person who dies and make sure their assets are distributed correctly. Anyone who is eligible can request approval from the court. If more than one eligible person applies, then the court will decide which person will be the administrator. The person who will become the estate trustee is usually determined by their relationship to the deceased. This begins with the deceased’s spouse (including common-law spouse), then children, then next of kin in decreasing order.

If the person who applies to be named trustee has a lower right to that role than another person, the higher-ranking person must renounce their right to apply for the certificate. For example, if the deceased’s daughter wants to apply for the certificate but the deceased had a surviving spouse, the spouse must renounce their right to apply.

Certain provinces may have rules about the applicant’s residency. If the deceased lived in Ontario, for example, the trustee must also be an Ontario resident.

Executors and administrators are commonly called the personal representative. The personal representative is required to collect all the assets that pass through the estate; pay all the taxes, administrative fees, and creditors; and then distribute the balance of the money to the rightful heirs.

Who is entitled to the assets?

Each province has their own set of laws that determines who gets the estate assets and in what amounts – if there isn’t a valid will.

The primary beneficiaries are the spouse or a domestic partner and the children. If the deceased was single without children, then blood relatives such as parents and siblings (if still alive) are generally next in line to inherit. In the rare instance that there is no one to whom your estate can be left, your estate may end up going to the provincial government.

Most provinces also except specific people from inheriting such as anyone who contributed to the death of the deceased. Parents who abandon their child or didn’t support their child may not be entitled to inherit if the child dies.

The province of residency is normally where the decedent had his/her home or apartment when the death occurred. Someone who lived the last 10 years of their life in Ontario but dies while on vacation in Florida will normally be considered a resident of Ontario and Ontario intestate laws will apply.

Some intestate terms

Here are a few relevant intestate succession terms:

  • Issue and issue per stirpes. Issue, in estate law, usually means the line of descendants of a person. It can get confusing. Here’s an example. John’s spouse dies before John and the couple had three children – Sue, Dave, and Larry. If the children are all alive when their father dies, then each child would in most, if not all, jurisdictions each get 1/3 of John’s assets. What If, however, Larry is deceased when his father dies but Larry had two children Karen and Fred. Then, the issue of John would be Sue, Dave, Karen, and Fred. Typically, the intestate laws of most states would say that the issues get their money per stirpes (essentially through their parents). So, Sue and Dave would still get 1/3 each and Karen and Fred would equally divide Larry’s 1/3 share and get each get 1/6 of John’s estate
  • To qualify as a spouse, the couple must have been legally married at the time of death. Intestate laws do govern the following changes and exceptions. Each province is different.
    • Divorced. If the parties were officially divorced when the other spouse died, then the ex-spouse is not eligible. If the parties are in the middle of a separate but not yet divorced, the courts could still see the estranged spouse as eligible. It may depend on if the couple was legally separated.
    • Common-law marriage. Some jurisdictions allow a common marriage based on factors such as the length of the relationship and whether and how the couple held themselves out to the public as married.
    • Same-sex marriage. This depends on the current federal and provincial laws and whether the couple had followed through with the marriage requirements.
  • Children born by the father or mother are entitled to inherit from the mother. The issue can get complicated in the following cases:
    • Adopted children. Generally adopted children are treated exactly as biologically born children and they are entitled to inherit from their adoptive parents. However, if a child is adopted that severs the relationship the child had with his/her biological parent. The adopted child doesn’t inherit from both sets of parents – just the newly adopted ones.
    • Stepchildren. Unless the new spouse adopts the children of his/her spouse, stepchildren do not inherit assets from their stepdad or stepmom. Some provincial exceptions may apply.
    • Foster children. Normally, foster children do not inherit from the adults taking care of them.
    • Children born after the parent dies. If conception occurred before the deceased died but the child is born after the parent’s death, then this child also inherits through his parents. Death doesn’t change the child’s rights.
    • Children born out of wedlock. In most jurisdictions, the child will still inherit from his parents. Proof of paternity will likely be required to inherit from the father.
  • As with children, the right to inherit depends on the province’s intestate succession laws. Half-siblings may inherit from their other half-sibling, if the person who died was unmarried and without children or parents.

Additional issues

Intestate laws usually fail to consider special circumstances such as:

  • Minor children. In a will, if there are minor children, the testator can appoint a guardian of the person to raise the child and a guardian of the minor’s property to handle the child’s share of the assets. Without a will, these guardians (who can be the same person or can be different) are appointed by the judge. The people who wish to serve as guardians will request that the judge approve their appointment. The judge will consider a lot of factors include the relationship of the person making the request, the family circumstances, and the best interest of the child; however, the court will make the decision without your input.
  • Survivorship requirement. Each province has its own laws, or may follow the Uniform Simultaneous Death Act), to cover the scenario where an heir such as a spouse dies at the same time as his/her spouse or within a few days. Many wills have a 60-day survival requirement.
  • Financially assisted persons. If you are financially supporting an elderly parent or paying for a grandchild’s education that aid could be discontinued by your court appointed trustee.

While every province’s law is designed to do what is in the best interest of a descendent, the only way to avoid your assets falling into the wrong person’s hands it by prioritizing your estate planning today while you are still able. Only you know how you want your estate to be distributed when you die and simply telling someone is not sufficient. Your wishes need to be in writing. At LegalWills.ca, you can create a customizable, province-specific will from the comfort of your own home in just 20 minutes.

Have you “Made a Will”? Make it your New Year’s Resolution.

It is that time of year again. The time when we all make New Year’s Resolutions for things that we know we really ought to do, but never quite get around to. We all know the popular ones. Go to the gym, lose weight, spend more time with our family. However, there is one New Year’s Resolution that we should all make sure that we keep. Have you made a Will? We should prioritize “making a Will“. Before you head to the gym and pay to join again, make sure that you protect your family and loved ones by writing a Will.

Making a Will

So many people do not make a Will, but really there is no excuse not to. It is one of the most important things that you should do to make sure that your family and friends are provided for in the event of your death. Continue reading →

Guardian for your children – How to name a guardian in your Will.

How to Choose a Guardian for Your Children

One of the most important things which you need to consider when you are making your Will is how to choose a guardian. They will take care of your minor children in the event of your death. This really isn’t something that anyone ever wants to think about, but it is one of the most important decisions that you need to make. No one likes to think of their own mortality. However, making a Will and appointing a guardian is one of the most caring things that you can do for your minor children.

If you do not choose a guardian for your children and both parents die, the court will have to appoint one. This will usually be a willing volunteer. However, you really don’t want to leave something so incredibly important to chance. A judge can appoint whoever they want to. This person could be your worst nightmare, but a judge may have of way of knowing that if you haven’t made your wishes clear. Continue reading →

Six consequences of dying intestate in Canada

Dying intestate means that you have died without a Will.

dying intestate

I’m not sure that anybody plans to die without a Will. After all, most people don’t plan to die. But it happens. In fact, the vast majority of Canadian adults do not have a Will in place, and most of these people think that they will probably have plenty of opportunities to write one at some time in the future.

Dying intestate…who does that?

Amy Winehouse, Barry White, Jimi Hendrix, Sonny Bono and Bob Marley would make a terrific band. However, what brings them together in this article is that they all suffered the ignominy of dying intestate.

But you don’t have to be young with a rock and roll lifestyle to end up dying without a Will. Roman Blum was 97 years old with an estate valued at $40M, he died without a Will and and incredibly with no heirs. His entire fortune in this case, was destined for the government coffers. Continue reading →

Before you make a Will – some definitions for non-lawyers

Writing your Will can be a very simple process, but because it is only done a few times in your life, it can be intimidating. It can seem daunting because there are so many unfamiliar terms used in the estate planning world. Expressions that are second nature to the legal community, but are not in everyday use for the rest of us. Before you make a Will, it is important to familiarize yourself with some of the more common expressions.

Just because the terms are unfamiliar, they are not complicated concepts. In this article we will explain a few of the words that you will need to know before you make a Will. We hope that we can demystified the process a little.

Mke a Will

 

Intestate

The term intestate is typical of much of the legal language in that it is derived from Latin, and in today’s World it means that you have died without a Will. Continue reading →

Why I haven’t written my legal Will – a confession

A month ago I was at a dinner party. I met a couple who had young children and the conversation naturally led to how we make a living. I explained that I was one of the founders of LegalWills.ca, the online convenient affordable service for writing a legal Will. The couple were thrilled, they had two young children, they knew that they needed to prepare their legal Will, but hadn’t got around to it. It was on their list of things to do, but as with all tasks with no real deadline, it never seem to make it to the top of their list.

They loved the idea of just going online one evening, stepping through the service, compiling their document, and then printing, signing in front of witnesses and creating their legal Will. So excited were they, that I gave them my business card with a discount code.

One month later, they still haven’t written their legal Will.

They still haven’t named an Executor for their estate, guardians for their children, made any charitable bequests, set up trusts for their children, created a distribution plan for their estate.

Legal Will

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Dying without a Will in Canada

If a Canadian dies without a Will, they have left a bit of a mess for their loved ones, and sadly missed out on an opportunity to distribute their assets in a meaningful way. Instead of recognizing friends or organizations that have made an impact on their life, they have left all of the planning to their Provincial government who have already decided how the assets will be divided. It may come as a surprise however, to learn that every Province is different and that there are some very inaccurate assumptions. In this post we will run through a few scenarios, and highlight some Provincial differences.

 

Let us start with the most common misconception;

If you are married, then your entire estate will go to your spouse.

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Do I need a Will?

The statistics still show that over 65% of adults in Canada do not have an up-to-date Last Will and Testament – even though most people know that they need a Will. Once in a while, somebody will tell us that they don’t need a Last Will and Testament – yet. Here are the top ten excuses for not having a Will, and we will explain why everybody should take the time to prepare their Will write now.

Last Will and Testament

1. Everything is going to my spouse whether I have a Will or not

In reality, there is not a single Province in Canada in which you can guarantee that this will be the case. Without a Will, the distribution of your estate is determined by “intestate law”, which follows a rather complicated flow depending on your family situation. What makes it more complicated is that no two Provinces are the same. In most Provinces, if you are married with children, your spouse will not receive the entire estate. Continue reading →