Dying Without a Will

By Stuart Cappus

When a person dies without a will, the Wills, Estates and Succession Act determines who will get their assets. Essentially, the Act provides that the deceased’s closest next of kin will inherit his or her estate.

If the deceased is survived by a spouse but not any children, the spouse will receive all of the deceased’s estate. Conversely, if the deceased is survived by children but not a spouse, each child will receive an equal share of the deceased’s estate.

If the deceased is survived by a spouse and children, who gets what will depend on the value of the deceased’s estate and whether the children are the natural/adopted children of both the deceased and the surviving spouse or only one of them. If the children are the natural/adopted children of both the deceased and the spouse, the spouse gets the first $300,000. This means that if the deceased’s estate is worth less than $300,000, the spouse gets it all. If the deceased’s estate is worth more than $300,000, anything over that is divided 50% to the spouse and 50% to the children in equal shares. Conversely, if the children are the natural/adopted children of only one of the deceased or the spouse meaning one of them was a step-parent, the spouse gets only the first $150,000 and anything over that is divided 50% to the spouse and 50% to the children in equal shares.

There are special rules with respect to the home in which the deceased and the spouse lived.

It is interesting to note that a deceased can have more than one spouse. For instance, the deceased could have been married to but separated from one person while at the same time be in a common-law relationship with someone else. It is important to seek legal advice to determine who has status as a spouse, and who is entitled to receive the deceased’s estate. In some circumstances, a separated spouse may be required to pursue family law proceedings.

If the deceased is survived by neither a spouse nor children, his estate will go to his parents followed by his siblings followed by his grandparents and cousins. Any relative 5 degrees or more removed from the deceased cannot inherit.