Estates & Wills & Trusts

Laredo: dying intestate can leave families in 'complete shambles'

By Kirsten McMahon, Associate Editor

When a person with minor children dies without a will, they lose control over appointing a guardian and providing for specific asset distribution, Toronto wills and estates lawyer Lisa Laredo tells Law Times.

“If you die without a will and you have minor children, then you lose the ability to appoint the guardian,” says Laredo, principal of Laredo Law. “You would be losing the power to state in writing who you want to take care of the kids.”

If no guardian is appointed, the state and the Office of the Children’s Lawyer make that determination, she tells the legal publication.

When it comes to the assets, Laredo says the children get their apportionment prescribed by the legislation in one lump sum. The absence of a will means there’s no ability to provide specific instructions on how and when any money should be distributed.

“Losing the ability to decide how your assets will be held for your children and how they will be distributed is huge because no 18-year-old I’d ever met is responsible to manage money like that. And people don’t usually manage money if they haven’t earned it,” she tells Law Times. “It just causes so much confusion for the people you leave behind.”

Generally, dying intestate leaves “absolutely no option” about how your estate is to be divided, as it falls within the Succession Law Reform Act, she says.

“The statutory formula for distributing the assets of an estate when there’s no will can’t be varied. You also lose the ability for any of your intended wishes,” Laredo says.

Under the Act, if there is a spouse as well as children, the first $200,000 goes to the spouse, she says. If the estate is worth more than $200,000, the rest goes to the children, but the spouse is entitled to one-third of the remainder, she adds.

However, if there is no spouse and only children, Laredo says the legislation determines that it’s all divided equally among the children. In a situation in which there is no spouse and no children, the estate is divided between the parent, the siblings, nephews, nieces and next of kin.

“Sometimes, people don’t want to have wills because they don’t think they have anything. Some people don’t want to have a will because they think it’s taboo to talk about death. Some people are just downright irresponsible and lazy because they talked about getting a will but never got around to it,” Laredo tells Law Times.

“And some people just don’t see the need for a will and so they die, and they leave their families in complete shambles, it’s a complete disaster,” she adds.

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