Many people in Ontario do not have a Will. According to a poll conducted by the Angus Reid Institute, 51% of Canadians do not have a Will, citing young age or lack of assets as their reason for not having one. Even those individuals who do have a Will, may not have one that currently reflects the state of their affairs. In fact, only 35% of the respondents to the survey said they had a Will that is up to date.
In Ontario, if someone dies without a valid Will, that is called an “intestacy.” This means you have no instructions on how you would like your assets to be divided after your death. Ontario’s Succession Law Reform Act (SLRA) then steps in to guide how any assets will be distributed. Even if you have a Will but all your named beneficiaries have passed away before you, then that becomes an intestacy as well.
If you die intestacy with a spouse and no issues (meaning a direct lineal descendant such as a child or grandchild), then all your assets are passed on to your spouse. For an intestacy, spouse only means a legally married spouse, so if you have a common law partner, it will be as if you did not have a spouse at the time of your death.
If you have a surviving spouse and children or grandchildren, a preferential share of the estate is passed to your spouse (currently being $350,000) and the rest is shared with the surviving children. If there is only one child, the surviving spouse and child share 50/50 in the balance of the estate but if there is more than one child, the surviving spouse will receive one third and the other two thirds are shared between the children. As well, children only mean biological or adopted children so any stepchildren who you may treat as your child would not be included in the disposition.
There are several other possible distributions contemplated by the SLRA if the individual does not have a spouse or issue alive at the time of their death, including first distributions to parents, then to siblings, then to nieces or nephews, then to any next of kin alive and if all else fails, to the government.
As you can see, these distributions may not be your desired outcome after your death. If you have a common law spouse, stepchildren, other family, or friends who you want to receive outside of what the SLRA says or want to donate a part of your estate to a charity of your choice rather than to the government, your wishes will not be accounted for after your death.
Another reason to have a Will and avoid an intestacy is that the process for administering an estate when someone dies without a Will is much more time consuming than someone with a Will. You save your family member time and stress by ensuring that you have a plan in place for after your death.
If you are interested in preparing a Will to give you and your family piece of mind, please reach out to our office and we would be happy to assist.
 R.S.O. 1990, c. S.26.
 Ibid at s. 44.
 Ibid at s. 1(1).
 Ibid at s. 45 and O. Reg. 54/95 at s.1(b).
 Supra note 2 at s.46.
 Ibid at s.1(1) and Child and Family Services Act, R.S.O. 1990, c. C.11 at s. 158.
 Supra note 2 at s.47.