Time and time again, we see individuals who think they don’t need a will because they don’t fit a particular mold. For example, some might think that estate planning without heirs is pointless – if you don’t have kids to leave assets to after you pass away, what’s the point? The truth is, regardless of your situation, a will is critical for ensuring that your interests are respected after you’re gone.
With Ontario’s Make-a-Will Month running throughout November, we’ll be covering the benefits of having a will in several situations. Today, we’ll be focusing on estate planning for individuals without heirs. This post will cover how an estate is distributed without a will in Ontario and the many benefits of estate planning – even if you don’t have heirs.
Heirs and Estate Planning
An heir is a person who is legally entitled to inherit assets from another person. While, commonly, we might think of “heirs” as our spouse or children, for estate planning in Ontario, we think much more broadly.
Distribution of an Estate without a Will in Ontario
Ontario’s Succession Law Reform Act, R.S.O. 1990, c. S. 26 provides direction regarding how an estate is distributed if a person dies without a will. Typically, if that person had a spouse and children, the estate would be distributed to them first.
However, in the case of an individual without “heirs”, the Succession Law Reform Act provides further direction, as follows:
- If the deceased did not have a spouse or children, their estate will be distributed to the deceased’s parents (either equally or to a single parent, depending on whether one or both parents survived the deceased).
- If the deceased did not have a spouse, children, or living parents, their estate will be distributed amongst the deceased’s siblings (note: if, for example, one of the deceased’s siblings has passed away, the share that would have gone to that deceased sibling is split amongst their children).
- If the deceased did not have a spouse, children, or living parents or siblings, their estate will be distributed amongst the deceased’s nieces and nephews.
- If none of the above individuals are alive when the deceased passes, their estate will become Crown property.
Why Wills Are Critical for Estate Planning, Even If You Don’t Have Heirs
As the above section demonstrates, estate planning without heirs is still an important step for any individual. Your estate can still be distributed after you die even if you don’t have “direct” heirs, like children. Below are just a few of the many reasons why it’s critical to prepare a will regardless of your situation.
Ensuring Your Assets Go Where You Want Them To
We want to emphasize that, regardless of whether you have a will or heirs, your assets can still be distributed to other beneficiaries per the Succession Law Reform Act. This distribution process is why it is so important to have a will regardless of your situation.
For example, depending on your relationship with your family, you may prefer that your estate not be distributed amongst your siblings. Without a will, and depending on which family members outlive you, your siblings could stand to inherit your entire estate.
On a more positive note, you aren’t limited to leaving your assets to individuals after your death. If, for instance, you are passionate about a particular charitable organization or cause, you can consider leaving assets to a charitable organization and creating a lasting impact.
Expressing Your Wishes Regarding Other Aspects of Your Death
In any event, wills are a critical estate planning tool for covering other aspects of death, too. For example, you can use your will to express wishes regarding your funeral and method of burial. Providing this kind of information can give peace of mind to individuals handling your estate, allowing them to rest assured that they are acting with your interests in mind.
Planning for Incapacity
Estate planning isn’t just about planning for your death – it can also help you plan for incapacity and ensure that your care and finances are handled appropriately. A power of attorney is a critical tool for everyone to include in their estate plan, regardless of their situation, to ensure that they are taken care of in the event of incapacity and to ensure someone is managing their finances and other important assets.
Providing a Blueprint for the Future
Life is always changing, so it’s important to prepare for the future by considering all the possibilities. Just because you’re preparing estate planning documents without heirs doesn’t mean that you won’t have a child in the future. Similarly, you may decide in the future that you wish to leave assets to a charitable organization that you’re passionate about. Perhaps most importantly, none of us know what the future holds or when an estate plan will become relevant in our lives, so there’s no better time to start planning than the present. Assessing your estate plan every year is a good rule of thumb – but start yourself off on the best possible foot by preparing your estate plan. An existing estate plan – even without heirs – will give you a solid blueprint to refer to each year and, if your situation changes, you’ll be able to easily update it with the help of an estate lawyer.
While it might seem easier to avoid making a will now, you might be creating more work for others down the line.
If you die without a will, your estate is an “intestate estate”. To distribute the estate, an individual (usually a family member) will have to apply to the court to distribute your estate. There can be multiple competing applications to distribute the estate and, of course, there may be disputes between potential beneficiaries. This process, in general, can be complicated and lengthy – and further complicated when the parties don’t have any direction from the deceased.
Caring For Your Common-Law Partner
Circling back to the concept of “heirs” and “spouses”, it’s critical to consider the impact of intestacy on a common-law spouse. In Ontario, common-law spouses do not have the right to inherit from an intestate estate (so, while a married spouse will be considered for distribution under the Succession Law Reform Act, a common-law spouse will not). We strongly advise you to create a will if you are in a common-law relationship.
Contact the Toronto Estate Lawyers at Derfel Estate Law for Guidance with Wills
If you need help with an existing will or are considering applying to challenge a will, contact the estate lawyers at Derfel Estate Law before you proceed. We can help you determine whether you are eligible to bring such a claim, help you understand your options and rights, and represent you throughout the challenge process. To find out how we can help, call our office at 416-847-3580 or contact us online to schedule a consultation.