“Do I really need a will?” - Intestacy and what happens without a will
It isn’t uncommon that some people are wondering- “Do I really need a will?” for a variety of reasons. This article will address some reasons as to why it may be beneficial to have a will and powers of attorney in place, even for those who are doubtful.
Intestacy:
Intestacy, or dying intestate, is the legal way of describing the circumstances in which someone has passed away without a will. When dying intestate, a person naturally has not previously laid out how they wish for their assets to be distributed. As such, the law has laid out what is effectively a default will for those without one of their own, through part of the Succession Law Reform Act (SLRA). Plainly, the law follows these rules generally:
Where a person dies intestate and is survived by their spouse and no “issue” (descendants), the spouse is entitled to the entirety of the estate.
Where a person dies intestate and is survived by a spouse and issue, the spouse is entitled to what is referred to as the “preferential share” of the estate. This amount is subject to being amended by the Government, but for estates of those who die on or after March 1, 2021, the “preferential share” is currently $350,000.
Where a person dies intestate and is survived by their spouse and one child, the remainder or “residue” of the estate is split evenly between the spouse and child, excluding the preferential share.
Where a person dies intestate and is survived by their spouse and two or more children, the spouse is entitled to the preferential share and a third of the residue of the estate. The remainder will be divided evenly between however many children there may be.
Where a person dies intestate and is survived by their spouse, and their child has predeceased them leaving behind grandchildren, the spouse is entitled to the same amount as if the child had been still living.
“Spouse” in these instances, does not include common-law spouses/partners.
“Children” in this case have a very specific definition. The phrasing of the SLRA is such that it does not include step children, but only direct biological children. Step children may only qualify under this definition if they are also adopted. “Issue", with regard to the SLRA refers to descendants. Descendants include children, but may also include grandchildren, and/or great grandchildren.
“Descendants” also includes those conceived before and born after the deceased’s date of death, as well as those conceived and born posthumously.
Where a person dies intestate and without a spouse or children, the estate will then pass in the following order:
To the deceased’s parents, equally.
If the parents have predeceased the person as well, the estate passes equally between siblings. If any of the deceased’s siblings have also passed, their children will be entitled to the sibling’s portion of the estate.
If the parents and siblings have already passed, the estate will pass equally between all nephews and nieces.
If the deceased is not survived by any of the above, the estate will pass to the next of kin- this could be someone like your cousin.
Where no next of kin is found, the estate may be claimed by the Government.
The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.