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Tag: Intestate

What Happens if You Die Without a Will in Ontario?

Confirmation of Registration Report They say nothing is certain in life but death and taxes. We pay taxes on a daily basis but often try to avoid the thought of death at all costs. Unfortunately, the cost to your loved ones if you do not plan for your estate in the event of your death can be abundant; and it […]

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What happens if you die without a will?

DID YOU KNOW IF YOU DIE WITHOUT A WILL IN ONTARIO?And you are married, have children and your assets are worth more than $200,000, your surviving spouse will not be entitled to your entire estate?It will be up to the Court to appoint someone to administer your estate if you are not married or do not have a surviving spouse?If you are not married or do not have a surviving spouse; if your minor children are entitled to any funds from your estate, the office of the Children’s Lawyer of Ontario (“OCL”) and the Accountant of the Superior Court of Justice of Ontario (“Accountant of the Court”) will decide how those funds should be invested and what amounts should be paid for your children’s maintenance?If both you and your spouse are deceased, it will be up to the court to decide who should act as guardians of your children?

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ESTATES & INTESTACY: Spousal statutory rights when there is no Will

Continuing the discussion of the effects of a Family Law election on various aspects of estate administration; its effect on intestacy is now reviewed.Effect on IntestacyIn an intestacy (where a spouse dies without a will), either partial or total, the election in favour of an equalization claim (FLA, subsection 6(9)) will result in the surviving spouse’s forfeiture of his or her entitlement under Part II of the Succession Law Reform Act (“SLRA”). In a partial intestacy, even when the will states that the benefits under the will are to be in addition to the surviving spouse’s equalization claim, that statement would not prevent the latter’s forfeiture of entitlement under Part II of the SLRA for the other part of the estate that is under intestacy.In intestacy, the SLRA has no control over a surviving spouse’s entitlement to property situated outside Ontario. Succession to immovable property as dictated by conflict of laws rules is under the law of the situs (position or site).  So, unless the laws of the jurisdiction in which immovable property is situate require that Ontario law be applied (i.e. the SLRA), the surviving spouse who elects in favour of an equalization claim can get the assets located outside Ontario. This is a glaringly unfair, and probably an unintended result, caused because the Net Family Property (“NFP”) of the deceased spouse is calculated on the basis of his or her worldwide assets.

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ESTATES & EQUALIZATION: Spouses electing their Family Law rights and the consequences thereof

It cannot be stressed enough how important it is for the surviving spouse to establish his or her entitlement to insurance proceeds and to survivorship benefits under pension and similar plans arising on the death of the deceased spouse.With this in view, the surviving spouse, who makes his or her decision on the basis of a will in respect of which no certificate of appointment of estate trustee has been issued, should also be cautioned. In the end, if the will put forward is found to be invalid; the surviving spouse would find that the election should have been made the other way. A wise course of action would be to defer the filing of the election until after the certificate of appointment of estate trustee with a will has been issued. Should there be difficulty in locating a will or there be litigation over the validity of a will, it would be appropriate to apply for an extension of time for filing the election beyond the six-month period following the deceased spouse’s death, (under subsection 2(8) of the Family Law Act (“FLA”)).

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Guardians of the Property of Minor Children

No one, including parent or custodian, has an inherent right to possess or control property or assets otherwise belonging to a minor child. They can, however, apply to the court to be appointed as a guardian of that minor child’s property. While it may seem rare for minor children to own property of any significant value, many minors come into vast fortunes through testamentary gifts from others. A financial windfall for a minor can occur when a surviving parent dies intestate or with a valid will failing to authorize the estate trustee to retain a minor child’s inheritance in trust and administer the trust during the child’s minority. In such an instance the estate trustee is generally required to pay into court the estate funds to which the child is entitled. Likewise, an untimely death may entitle a minor child to life insurance proceeds (where a trust has not been established for those proceeds when making a beneficiary designation), or may give rise to the payment from the so-called “orphan’s” benefits from publicly or privately funded pension schemes. Without a court appointed guardian, such entitlements (with the exception of amounts qualifying under s. 51 of the CLRA) would be paid into court to the credit of the minor child and be held there during the child’s youth or until a subsequently appointed guardian of property makes a successful application to control those monies.

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WILLS & ESTATES: What Every Person Should Know!

The difference faced by a person selling life insurance and someone intending to make a will is similar to a great extent. The former has to tell the client to visualize a situation when he/she is not alive, not quite a great opening line. The latter similarly is not expected to think of impending death, at least not in the immediate future. However, the probability of death is always there; quite a number of people die at a

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