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Estates & Wills & Trusts

The consequences of dying without a will

With surveys showing more than half of Canadians don't have a will, Barrie-area litigator Steve Rastin tells AdvocateDaily.com he suspects a fair amount people aren’t aware of some of the negative consequences if they die intestate.

“I don’t think people are avoiding getting a will made because of the cost,” says Rastin, managing partner with Rastin & Associates. “I think it’s a matter of some people assuming there are systems in place to distribute their assets and that their loved ones will automatically be taken care of.”

While the Succession Law Reform Act (SLRA) sets out a distribution scheme when someone dies without a valid will, Rastin says you may not be happy with how the government will divide your estate.

“Your legal spouse is given the first $200,000, and the remaining balance is divided between your spouse and children,” he says. “If there are no spouse and children, then it goes to the parents, siblings and nieces and nephews, etc."

Rastin says one of the biggest areas of contention involves common-law spouses versus married spouses. While a common-law spouse may be equal in some areas of law, that does not extend to estates law.

“There's a perception that whether you're legally married or common-law, it's the same thing — it’s really not,” he says.

For example, if you have a common-law partner and die without a will, the spouse would only be considered a dependant and would have to apply for support at the discretion of the court, Rastin says.

If you have minor children, a will goes a long way in determining who will be their primary caregiver(s).

“The custody appointment in your will only lasts for 90 days after it takes effect but, in my experience, the court will put a lot of weight in that. Of course, if you don't put one in, you're not going to have a say as to who raises your kids,” he says.

“Judges are complete strangers to you and your family. A relative who looks great on paper might not be the kind of person you want raising your children.

"You can’t expect a judge to know all of the family issues and dynamics,” Rastin adds.

If you want to give some of your money to a favourite charity when you die, you can only do that through a will, he says.

“As well, if you want to control how personal items are distributed as opposed to sold — maybe there’s a painting or something else that's very important or sentimental to a certain person — you would put that in your will,” Rastin says. “Generally speaking, without a will the appointed estate trustee will sell all of the assets and distribute the funds."

As well, without a will, you won’t have a say in your funeral planning.

While the cost of estate planning may be a hindrance for some, Rastin says reciprocal wills and powers of attorney can cost about $800 to $1,000. 

“You get two huge advantages — you get to distribute your money the way you want to. And two, if you're dealing with a reputable lawyer, your will is much more likely to survive a challenge.”

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