Many people incorrectly assume that if they were to die without a Will their estate would simply pass to their spouse. However, this would only happen for assets that were held jointly with right of survivorship with the spouse (except for in Quebec).
In Canada, if you die without a Will you are considered to have died “intestate.” Simply put, this means that your provincial government decides how your assets will be divided—and not you.
Each province has intestacy rules that define your estate’s beneficiaries and how much each is to receive. Usually, this means your legal spouse and biological and adopted children will likely end up with your estate’s assets. Intestacy rules, however, do not take into account any intentions you may have for distributing your assets. Even worse—intestacy can result in additional legal costs for your beneficiaries.
How your intestate assets may be distributed
Depending on your province, your spouse will receive a preferential share of your estate, ranging from the first $40,000 to $200,000. The balance of the estate is divided among your spouse and children. (Children inherit at the age of majority—18 or 19 years depending on the province).
However, the definition of “spouse” varies from province to province, which can cause difficulty for non-traditional families. For example, without a Will, someone who has both a legal spouse and a second, common-law partner could leave a legacy of litigation to their heirs.
Most provincial intestacy rules do not recognize common-law spouse status, so he or she may be left out of the estate entirely. However, in most provinces, a common-law spouse may petition the courts for support as a dependent, leading the estate into litigation and further costs.
No matter what your family situation, intestacy does not take into consideration any intentions you may have for the distribution of your estate. For your peace of mind today and your family’s peace of mind tomorrow, making a Will is an easy, inexpensive solution.
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