Toronto lawyer Lisa Laredo discusses intestate succession as well as some exceptions to the Succession Law Reform Act in a recent Lawyers Weekly article.
“The Succession Law Reform Act (SLRA) gives an adult person and, in some limited respects, a minor, a general power to dispose of their property as they see fit upon their death by drafting a will,” she writes in the legal publication.
“If a will meets the statutory requirements to be valid, it will be effective as of the testator’s death, and his or her property will be disposed of as set out therein. If a person dies without a valid will, the deceased is deemed to have died intestate, and the estate is subject to the rules of intestacy set out in the SLRA, Part II,” she continues.
She writes that a notable aspect of intestate succession is that all of the assets of the deceased are grouped together and distributed according to the rules.
“One place where this is particularly troublesome for families is in regards to the house of the deceased. If the whole ownership of the home is not set up to automatically vest in the partner of the deceased by right of survivorship, as it would in a joint tenancy, there are no laws in Ontario to protect the home from being liquidated,” Laredo writes in the article.
“In such a case, if the share of the partner or children of the deceased does not cover the whole value of the house, they would be required to buy out the remaining share from the estate or lose the house.”
When a person dies without a will, Part II of the SLRA sets out a detailed scheme for the distribution of the estate assets among the relatives of the deceased. She writes that in the majority of cases those relatives would be the spouse and children, if any.
“The spouse is given a preferential share of the value of the estate, now set at $200,000, and the balance, if any, is divided among the spouse and children,” she writes in Lawyers Weekly. “In the absence of a spouse and children, the rules set out a scheme of distribution.”
Laredo writes that it’s important to note that “spouse” — as defined in Part II of the SLRA — includes only those who are legally married, or those who, in good faith, believed they were legally married despite the fact that their marriage was void or voidable.
“The act does not consider a ‘common law partner’ to be a spouse. Under the act, a common law partner is merely considered a dependant and is entitled only to dependant support at the discretion of the courts,” she writes in the legal publication. “If a person dies intestate with a common law partner and issue, the children would receive their shares as set out in s.47(1), and the common law partner is entitled to nothing without a successful application for dependant support under Part V.”
Laredo adds the only way to ensure that your estate is distributed fairly upon death is to have a detailed, valid will, “always remembering that there is a legal obligation on a testator to deal adequately with his or her dependants,” she writes.