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Probate Basics: What to do next without a Will

By May 25, 2021January 19th, 2023Wills & Estates

This post is the last in our series on Probate Basics. So far, we’ve looked at what the term “Probate” means and what to do if someone passes away with a Will. In this installment, I’ll talk about another possibility: what do you do when someone passes away WITHOUT a Will?

You can check out the rest of the series here:

  1. What exactly is probate?
  2. What do I do when someone passes away with a Will?

A Quick Recap

Probate is the process of securing approval from the court to act on behalf of someone who has passed away. Once approved, this person is called the Estate Trustee.  However, going through probate is not always necessary, as it depends on many variables surrounding the estate.

The Good News and the Bad News

Let’s start with a piece of good news. The government does not automatically get the money. Many people have heard “from a friend” that if somebody dies without a Will, the government becomes entitled to that person’s property by default. This is not true. There are some situationsi.e. if a bank account is left unclaimed for many years where the government may eventually end up receiving money. Still, there is legislation in Ontario that determines what happens to the property of a person who passes away without a will. This legislation is referred to as intestate succession, and intestacy refers to when a person has passed away without a will.

The bad news is that dealing with the estate of a person who passed away without a Will is generally more complicated, time-consuming, and expensive than if there was a valid Will. Additionally, the uncertainty and complexity of dealing with an intestacy can be very emotionally demanding.

How Do I Find Out If There Was a Will?

Since the probate process without a Will is undesirable, it’s a good idea to put some effort into determining whether a Will might exist. In many cases, a deceased person’s close family or friend will know if they had a Will prepared. If so, you must locate the ORIGINAL copy for the probate application. The most common places to find the original Will include:

  • a filing cabinet or other place in their home where the person stored their important documents
  • at the office of the lawyer who drafted the Will
  • a safety deposit box
    • Note: this may not be the best storage idea due to the logistical difficulties of a non-owner getting access to it.

If none of those locations turn up the Will, there are some other ways to try to locate one:

There Was No Will: What’s Next?

So, you’ve done your searches, and it seems clear there is no Will. Now what?

Probate on an Intestacy

In Ontario, if a person dies without a will and probate is necessary, someone must apply to the court to be appointed as the “estate trustee without a will”. While the court is not obligated to appoint any one person, there are rules regarding who may apply. These rules are generally based on the closeness of their relationship to the deceased person. The applicant must state why they are entitled to apply and if anyone else may also be entitled. If more than one person wishes to be named estate trustee, the court will refer the matter to a judge to determine the most appropriate person. This will add time and cost to an already complicated process.

Another downside of a probate application without a Will is that the applicant may be required to post a bond based on the estate’s value. Again, this adds to the time involved and cost of dealing with the estate. In some situations, you can submit additional paperwork to avoid the necessity of posting a bond.

Inheritance Rules

As mentioned above, there is legislation that provides a framework to determine who becomes the beneficiary in the case of an intestacy. These default rules start from the people most closely related to the deceased person or those owed the most considerable financial support from the departed. They then move gradually outwards to more distant relatives. Exactly who will inherit what depends on which surviving relatives exist.

Very generally, the list of relatives in order of their entitlement to become beneficiaries upon an intestacy is:

1. Spouse and children:

  • Spouse only
    • If the deceased person left behind a married spouse and did not have children, then the spouse will inherit the entire estate.
  • Spouse and children – estate value less than $350,000.00
    • If the deceased person left behind a married spouse and children, the spouse is still entitled to everything in this case.
  • Spouse and children – estate value more than $350,000.00
    • If the deceased person left behind a married spouse and children, the spouse is generally entitled to a “preferential share” of the estate, which is currently $350,000.00.
    • The remainder is divided among the spouse and children (the exact share depending upon the number of children).

2. Parents
3. Siblings
4. Nieces and nephews
5. If none of the above exist, then the next closest next of kin

An exception to the order of priority imposed by law can occur if the deceased person jointly owned property. In that case, the surviving owner(s) will presumptively become the sole owner(s) of these assets. This situation could mean that a person’s closest relatives will not inherit a significant portion of their estate if that deceased person owned them jointly with others (for example, a property owned jointly with a sibling or parent).

Guardianship of Minor Children

If a minor child has another surviving parent or guardian, then they will presumptively become the sole guardian when their parent passes away without a Will.

Otherwise, if the child’s parent(s) passed away without a Will, the parent would not have a way to identify their preferred alternate guardian(s). In that case, the court will become involved in appointing an appropriate guardian. This process may result in a choice that you would not have made.

Bottom Line

Estate administration typically requires significant time and attention. And when the deceased person did not have a valid Will, the administration is even more time-consuming and complex. Obtaining legal advice will help you deal with these complications and make sure nothing has been overlooked.

The best way to help your family and loved ones avoid these extra difficulties is to speak to a lawyer about having a Will prepared. This way, you can prevent some of these complexities, and you can be sure that your wishes will be followed. BONUS: it is less costly to have a Will prepared than the additional expenses incurred in dealing with intestacy!

If you are facing probate or estate administration or are ready to prepare your Will, we can help you navigate the process and ensure you have everything you need. Send DMC an email or give me a call directly at 416-443-9280 extension 208.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.