If you die without a Will, the law considers that you have died “intestate”, which means that you have left no directions as to how you want your property to be distributed and by whom. If you have a will, but have failed to sufficiently deal with a portion of your estate, this is referred to as a “partial intestacy”. The Succession Law Reform Act sets out a format for distributing your property to your surviving family in the case of intestacy or partial intestacy. Your Estate will be divided in the following manner:

• Surviving Spouse & No Issue : If there is a surviving spouse, whether or not the spouses are separated, and no children surviving, the spouse may be entitled to the entire estate. Keep in mind that a spouse, for allocation purposes, is limited only to a legally married spouse. Therefore, a common law spouse would not be entitled to the distribution of the deceased person’s estate.
• Surviving Spouse & Children Surviving : When there are both a spouse and children surviving, the spouse may be entitled to a “preferential share”. Pursuant to the Succession Law Reform Act, the preferential share is currently $200,000.00.

The spouse is entitled to the preferential share in the subsequent manner:

Where the Net worth of the estate is less than $200,000.00, then the entire estate passes to the spouse despite of whether or not there are surviving issue; and if the net value of the estate is more than the preferential share, $200,000.00 passes to the spouse, and the remainder will be divided between the spouse and children in the following way:

• If there is only one child, then the spouse is entitled to one half of the remainder over and above $200,000.00 and the remaining one half is for the child; or
• If there is more than one child, then the spouse is entitled to one third of the remainder over and above $200,000.00, and the balance is split equally between the remaining children.
• Alternatively, a surviving spouse is given the option to elect to receive a portion of the deceased spouse’s estate Succession Law Reform Act or under of theFamily Law Act.
• Electing Under the Family Law Act.

It provides that, when a spouse dies, if the Net Family Property of the deceased spouse exceeds the Net Family Property of the surviving spouse, the latter is entitled to one half the difference between them. If the surviving spouse elects to receive under the Family Law Act, he or she forfeits their entitlement under the Succession Law Reform Act. Please note that this option is not available to common-law spouses.

• No Spouse & No Issue

If there is no surviving spouse and no surviving children and one of the parents of the deceased is surviving, then that parent will receive the entire estate.

• No Spouse, No Issue and No Parents

If there is no spouse, children, or parents surviving, the estate will pass equally among the siblings of the deceased person.

• No Immediate Family

Where there is no spouse, issue, or parents, or no siblings surviving, the estate passes to all of the nephews and nieces,.

• Next-of-Kin

If none of the above is surviving, the next-of-kin of equal scale will share equally.

• No Next-of-Kin

When there is no next-of-kin, the estate becomes the property of the Crown.

The priority list followed by the court when deciding who will be appointed as the administrator of the estate begins with the deceased person’s spouse followed by the children, grandchildren, parents,siblings and finally, distant relatives.

Who Will be Granted Custody of Your Children, and Who Will be the Guardian of Their Property?

One of the most important motives for parents with children to make a Will is to appoint a desirable individual who will be concerned for their children in the event that they should die while their kids are still minors. In addition to choosing a competent guardian, parents should also be concerned with taking into account the way in which the guardian will raise their kids in their absence, and who will be the guardians of their property untilthe children reach the age of majority. All of this can be included in a Will.

The Will appointed custodian will have to apply to the court ninety (90) days after his or her appointment for a permanent order of custody, if he or she is interested in continuing as the minor’s custodian.

In the event that a parent dies without a Will, leaving behind a child who has not attained the age of majority, anyone who would like custody of the child will have to apply to the court for a custody order. Any time the court makes a determination with respect to children, their best interests are considered.

The COST of drafting your Will is not an expensive outlay, particularly given the comfort of having your affairs in place in the event of your death. A Will is be one of the most important documents you will ever make and without professional advice in drafting your Will, you could unintentionally leave very complex, complicated and unresolved issues behind for your loved ones to resolve.