Dying Without a Will Can Cause Complications
By: By Andrea Lusk, Gardiner Miller Arnold LLP
“They died without a will.”
Five simple words that make estate lawyers either shudder or rub their palms together in anticipation of extra fees. Dying without a will is not the end of the world. But it does increase the risk that whomever you leave behind will have some extra hurdles to deal with.
No Will
Sonny Bono’s widow duked it out with Cher, his two children and an alleged love child over the administration of his estate. He died without a will.
Author Stieg Larsson’s lifelong partner and writing collaborator of 32 years was not entitled to share in his estate. Instead, it went to his father and brother from whom he may have been estranged. He died without a will.
Jimi Hendrix died without a will in 1970, and some litigation relating to his estate went on for over 40 years. New lawsuits began in 2022.
Prince and Bob Marley died without wills. Their estates faced years of claims from people – claiming to be their wife, child, sibling or other relative – trying their hand at the line of succession.
In Ontario, the general law governing “intestacy” – that is, “dying without a will” is found in legislation called the Succession Law Reform Act (“SLRA”).
When a person dies without a will, the SLRA sets out what happens to their estate:
- If a person has a spouse and no children, the entire estate goes to the spouse.
- If a person has a spouse and one child, the spouse gets
what is called the “preferential share” of the estate, which
is currently $350,000. Whatever is left is then divided between the spouse and child equally. - If a person has a spouse and more than one child, the
spouse gets the preferential share and 1/3 of what’s left of the estate and the remaining 2/3 is split between surviving children. - If a person dies without a spouse or children, the line of inheritance then goes to surviving parent(s), sibling(s), niece(s) and nephew(s).
What the SLRA distribution ignores is common law partners, charities, friends, businesses, pets, estrangements, and guardianships. In early 2022, the SLRA changed to add that separation revokes a bequest in a will and that marriage no longer revokes a will (amongst other changes).
People are separated if they are living separate or apart for more than three years, parties to a separation agreement or are parties to a court order dealing with separation.
Prior to these changes, only divorce revoked a bequest in a will to a former spouse and marriage after a will revoked the will.
The Challenge of an Estate Trustee
But who gets your estate is only one half of the equation. Someone needs to administer it. That person is called the “estate trustee” (formerly the “executor”).
Without a will, there is no one named as estate trustee to deal with bank accounts, pay bills, pay employees or make day-to-day decisions. An estate trustee must be over 18, mentally capable and an Ontario resident.
Under the Estates Act, a certificate of appointment (what used to be called “probate”) will not be granted to an Ontario non-resident without extra steps, which range from additional affidavits to posting a bond to a court order. This is the case with or without a will.
If the person applying to be the estate trustee is a non-resident of Ontario, the court must approve the appointment. If the court is not satisfied the proposed person should be appointed, it’s possible a trust company can be appointed, and that company paid from the estate.
Howard Hughes’ estate took over 30 years to wrap up, with 200 of his distant relatives being named among his many heirs and hundreds more challenging the appointment of estate trustee.
Amy Winehouse reportedly did not get along with her father, but carried a flame for her ex-husband. Her father was appointed her estate trustee and her parents inherited her estate.
Having a Will That is Set Aside or Not Followed
Princess Diana had a will and left an additional “letter of wishes,” giving additional bequests beyond her formal will. Her mother and sister were able to make decisions regarding her estate specifically contrary to her letter of wishes because it did not comply with will formalities.
Heath Ledger had a will but didn’t update it to reflect that he had a child. When he died, his estate went to his parents and siblings.
Be careful about “do it yourself” wills. Dying with a will that cannot be administered is the runner up to dying without a will.
Appointing an estate trustee that won’t be approved without a court order, improper witnesses and other technical missteps create added expense to estate administration.
More often than not, the “do it yourself” will is the one that leads to challenges because it cannot be administered as written. Some people try to skimp on the will, but that is penny-wise and pound-foolish. If you make a will using a kit, have a professional review it to make sure it is properly done.
Consider the minimum requirements of a valid will,
- appointment of an estate trustee,
- giving the estate trustee standard directions, and powers,
- and deal with assets and setting out beneficiaries.
The will must be dated and signed before two witnesses who are not spouses or beneficiaries of the will maker (or spouses of beneficiaries). If thinking beyond those parameters makes you nervous about your mortality, then stick with the basics.
Even a simple will is better than no will.
Andrea Lusk is a senior associate lawyer at Gardiner Miller Arnold LLP, where she practices condominium, real estate and estate law and litigation.