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 when someone dies.
Therefore, people start fighting over it. Estate litigation is even more complicated than divorce because there are more people. 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.
Who inherits without a will?
When a person dies without a will, they die “intestate”. The Ontario Succession Law Reform Act 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.
If the deceased had a spouse and children, the spouse receives the first $200,000. 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.
If 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 you want to ask a lawyer about inheritance, contact us below.
Will The Estate Get Divided Equally?
So for 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.
Smith would receive the first $200,000 plus 1/3 of the remaining $600,000. So, Mrs. Smith would receive a total of $400,000.
The remaining balance of $400,000 would be divided equally between John and Jane.
So John and Jane would each receive a total of $200,000.
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.
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:
- Determine the value of each spouse’s property at the date of death, subtracting all debts from the total assets;
- Determine the value of all assets that each spouse brought into the marriage;
- For each spouse, subtract the date of marriage assets from the date of death assets, this amount is each spouse’s net family property;
- 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:
- At the date of Sue’s death, her assets are valued at $200,000 and Bob’s assets are valued at $100,000;
- Sue entered the marriage with $50,000 and Bob entered the marriage with $10,000;
- 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 equal $90,000;
- 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.
Ask a Lawyer about Inheritance
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 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.
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.
Ask a Lawyer about Inheritance
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; and
- Upon your father’s death, the assets will not pass through the Will, they will pass directly to the co-owner; meaning 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 with either valid identification or a sworn affidavit 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 by showing the estate trustee relevant documents such as a birth or marriage certificate or a sworn affidavit in order to receive your inheritance.
Does a husband have rights to his wife’s inheritance?
No, as long as the wife keeps the inheritance separate, meaning she does not put it into a joint asset such as 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.
Click here to watch videos about inheritance law. Below is a general video that talks about inheritance.
Author: Alistair Vigier is the CEO of ClearWay Law