Are you trying to find questions to ask a lawyer about inheritance? Below are a few things to think about when dealing with inheritance law.

There is often a lot of money involved when someone dies. Therefore, people start fighting over it. Estate litigation is even more complicated than divorce because there are more people with an interest at stake.

For instance, there could be five different groups, all with their own lawyers.

This is why it’s so important to hire an estate planning lawyer before you die or get sick. If you are in BC, you can reach out to Dale North on her contact form. She can also be called at (604) 629-7808

Who inherits without a will?

When a person dies without a will, they die “intestate”. The Ontario sets out the way that the estate of a person who died intestate will be distributed among their relatives.

If the deceased had a spouse but no children, the spouse receives the entire estate.

When the deceased had a spouse and children and died before March 21, 2021, the spouse receives the first $200,000. If the deceased died on or after March 21, 2021, the spouse receives the first $350,000.

These amounts are called the “preferential share”.

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The remaining balance of the estate is divided among the spouse and children in the following manner.

When there is one child, the spouse and the child each receive half of the balance of the estate.

When there is more than one child, the spouse receives a third of the balance of the estate and the rest is divided equally among the children.

If the estate is worth less than the preferential share as detailed above, the spouse will take the whole estate absolutely.

If you want to ask a lawyer about inheritance, contact us.

Will The Estate Get Divided Equally?

Understanding the above division of property between a spouse and children can be confusing.

To provide an example, if Mr. Smith died intestate and his estate was worth $800,000 and he had a wife, Mrs. Smith, and two children, John and Jane, then the following might happen.

He would receive the first $350,000 plus 1/3 of the remaining $450,000. So, Mrs. Smith would receive a total of $500,000.

The remaining balance of $300,000 would be divided equally between John and Jane.

So, John and Jane, would each receive a total of $150,000.

What if the Deceased died Intestate with no Spouse or Children?

When the person that died had children but no spouse, the estate is divided equally among the children. If the deceased did not have a spouse or children, the deceased’s parents receive the entire estate.

If the deceased does not have any surviving parents, the estate will be divided equally among the deceased’s siblings.

When the person that died does not have any surviving immediate family, the estate is divided equally among the deceased’s nieces and nephews.

If there are no surviving nieces and nephews, the estate will be divided equally among the nearest next-of-kin of equal degree. Finally, if there are no surviving next-of-kin, the estate becomes property of the Crown.

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What if there is a Partial Intestacy?

Let’s say that the testator made some gifts under a will, but another property was not accounted for. This means that there would be a “partial intestacy”.

The intestacy rules previously identified will apply to the remaining property, with an important exception for spouses.

The spouse’s preferential share will be reduced by any amount that they received under the will. For example, if the spouse received $250,000 under the will, their preferential share would be $100,000 (to reach a total of $350,000).

If the surviving spouse receives a value under the will that exceeds the preferential share, then they are not entitled to a preferential share.

What happens to my Will that was made prior to marriage?

Suppose that you made a Will disposing of your property to various beneficiaries, and subsequently get married.

You may be considering making changes to the Will to include your new spouse, or wondering what the status of the Will is in the meantime.

Or perhaps your spouse was already included in the Will prior to marriage, and you would like to know if it remains valid.

The answer to this question is in a state of flux for Ontario. Currently, an existing Will is automatically revoked upon marriage. An exception is if the Will states it is made in contemplation of an upcoming marriage.

However, Bill 245 was recently passed which will alter the Succession Law Reform Act. The amendment will revoke this rule so that a Will remains valid after marriage.

You would therefore have to choose to alter your Will or make a new Will after getting married. This change comes into effect no earlier than January 1, 2022.

What are the inheritance laws when one parent dies?

When one parent dies with a Will, their surviving spouse can elect to either receive their entitlement under the Will or an equalization payment.

If the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half of the difference, this is called an equalization payment.

The equalization payment is calculated in the following manner:

1. Determine the value of each spouse’s property at the date of death, subtracting all debts from the total assets;
2. Determine the value of all assets that each spouse brought into the marriage;
3. For each spouse, subtract the date of marriage assets from the date of death assets, this amount is each spouse’s net family property;
4. Subtract the lower net family property amount from the higher one and divide the difference in half, this is the amount of the equalization payment that the spouse with the higher net family property must pay the other spouse.

What Happens To Assets When Someone Dies?

So for example, if Bob and Sue are married and Sue passes away, the equalization payment is calculated as follows:

1. At the date of Sue’s death, her assets are valued at $200,000 and Bob’s assets are valued at $100,000;
2. Sue entered the marriage with $50,000 and Bob entered the marriage with $10,000;
3. Sue’s net family property is $200,000 minus $50,000 which equals $150,000. Bob’s net family property is $100,000 minus $10,000 which equals $90,000;
4. Since Sue’s net family property is higher than Bob’s, Bob’s net family property of $90,000 is subtracted from Sue’s $150,000 which equals $60,000. The equalization payment is, therefore, $60,000 divided by two, which equals $30,000.

Therefore, upon Sue’s death, Bob’s equalization payment from Sue’s estate would be $30,000. So if Bob’s entitlement under Sue’s Will was more than $30,000, he would likely not be eligible to receive the equalization payment.

When one parent dies without a Will, their surviving spouse can elect to either receive their entitlement under the laws of intestacy (as described above) or an equalization payment.

Whether or not the parent has a Will, after the surviving spouse receives their share of the estate, the balance will be distributed in accordance with the Will or the laws of intestacy.

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Who is considered a “Spouse” for the purposes of Intestacy and Equalization?

In order to receive a share of the deceased’s estate on intestacy or to claim an equalization payment, you must have been married to the deceased at the time of their death.

Common-law spouses are therefore not entitled to any share of the estate on their partner’s death if there is an intestacy and do not have the election for an equalization payment.

However, common-law spouses may bring claim support under Part V of the Succession Law Reform Act which provides for dependent’s relief.

Dependent’s relief is available where the deceased has made inadequate provision for a family member to whom they were providing support, or were under a legal obligation to provide support, immediately before his or her death.

Claim dependent’s support

A cohabiting spouse may claim dependent’s support if they continuously lived with their partner for a period of not less than three years, or were in a relationship of some permanence if they are the parents of a child.

Importantly, an application for support must be brought within six months of a Certificate of Appointment being issued to the Estate Trustee.

The court has some discretion to provide relief after the six-month period if a portion of the estate still exists, however, it is preferable to meet the initial deadline.

We are happy to assist you with an application for support.

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My spouse and I are separated but not divorced. Will I still inherit under their Will?

Currently, a separated spouse is still entitled to inherit under a Will or on intestacy unless the marriage was terminated by divorce.

However, this entitlement will change sometime after January 1, 2022, when Bill 245 comes into effect.

Bill 245 will amend the Succession Law Reform Act so that a spouse’s entitlement will be revoked if the spouses are living separately and apart due to a breakdown of their marriage.

Circumstances that constitute separation will include the spouses living separately and apart for three years immediately preceding the death, entering into a valid separation agreement, or the issuance of a family arbitration award that settles their affairs.

If you have recently undergone a divorce, your former spouse will no longer inherit under your Will. The Will remains valid, however, the gifts to your ex-spouse will be revoked. The Will shall be read as though your former spouse predeceased you.

Can we avoid probate of my father’s will?

Depending on the assets held by your father, it is possible to structure his estate so that it will not require probate.

Assets held in joint tenancy will pass to another person by right of survivorship and will therefore not go through probate.

So if your father holds his assets, for example, his house and bank accounts, jointly with his spouse, one of his children, or any other person, those assets will automatically transfer to that person upon his death and will not require probate.

Please note that joint tenancy is different than holding property as a tenant-in-common.

If you hold a percentage interest in a piece of property as a tenant-in-common, the property will not automatically pass to the other owner on death.

Instead, the deceased’s share of the property goes to their estate and will be disbursed in accordance with the Will or rules of intestacy.

This is a very important difference to keep in mind when determining what form of ownership you wish to select.

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There are risks to holding assets jointly in that the other person becomes a full co-owner of the assets. This would leave your father’s assets open to intentional and unintentional abuse from the co-owner, including:

Your father wanted to sell or refinance the assets. He would need the consent of the co-owner, meaning if the co-owner did not agree with your father’s decision, they could block it.

The co-owner owes taxes, goes bankrupt, has debts or is sued. Their creditors will be able to go after your father’s assets to satisfy the co-owners debts.

The co-owner is not your father’s spouse and they get divorced. Your father’s assets will form a part of the matrimonial assets to be divided.

Upon your father’s death, the assets will not pass through the Will. They will pass directly to the co-owner. This means no other beneficiary will receive the benefit of those assets.

If you are seeking to use joint tenancy to avoid probate, you should seek legal advice.

How to make sure I receive my inheritance?

If you are named as a beneficiary in the Will of the deceased, you may have to prove your identity to the estate trustee. This could be with either valid identification or a sworn affidavit. This must be done in order to receive your inheritance.

If one of your relatives died intestate in Ontario, you may have to prove your relationship to the deceased. This can be done by showing the estate trustee relevant documents. These can include a birth or marriage certificate or a sworn affidavit. This must be done in order to receive your inheritance.

Ask a lawyer about inheritance and get some legal advice.

Does a husband have rights to his wife’s inheritance?

No, as long as the wife keeps the inheritance separate. This means she does not put it into a joint asset. This could be the family home or a joint bank account. It remains solely hers.

Further, inheritances received during a marriage are specifically excluded from the division of property upon divorce.

We hope you found this guide on what to ask a lawyer in Canada about Inheritance useful.

Author: Robins Appleby LLP (Canadian law firm)