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What to Do With a Will After a Death?

What to Do With a Will After a Death?

Your common law spouse of four years, Ben, has died at work from a massive stroke. What to do with a will after a death?

Neither of you saw it coming. You lifted weights together every morning. How could this happen?

You’re still grieving when his ex-wife lets herself into his Bracebridge cottage with her spare key. Ann’s a hard-nosed realtor who says he left her the ’70s bungalow in his will. Despite owning a 2,000-square-foot townhouse in Ottawa, she has already moved in with her perky Pekinese, Lily, and their adorable six-year old, ginger-haired Charlotte.

You love that place. Most of all, it reminds you of the great times you had together, cuddled up in your hand-crafted Adirondack chairs on the cedar deck, watching the sun set over the Muskoka River. You can see her there now, warming herself by the granite fireplace while you seeth in your frigid, rented North York condo.

You frantically rifle through Ben’s wallet, searching for his lawyer’s business card and race over to his glass and chrome office. It’s the first time you have met face to face. Your eyes glaze over when he asks if you had a joint will.

You meant to rewrite your wills. You just never got to it.

What to Do With a Will After a Death?

What to Do With a Will After a Death?
What to Do With a Will After a Death?

Ben wrote a will in 2009 when he and Ann were married and updated it in 2012, after Charlotte was born.  The couple separated in 2014 and has been living apart since. They shared custody of Charlotte, who has been living with her mother since the separation, in their Ottawa townhouse.

Ben bought the cottage in 2007, when sales were on a downswing, for $89,000 and fixed it up. Ann, who has always earned more than Ben, bought the townhouse for $375,000 in 2008 and it is currently valued at $650,000. Ben has been using the cottage exclusively, but willed it to Ann, with Charlotte as her beneficiary.

Ben could have sold the cottage after he married and before the couple separated. Since that didn’t happen, both the townhouse and cottage are considered matrimonial homes under Ontario family law, despite the fact Ben, Ann and Charlotte spent most of their time at the townhouse. The cottage is now worth $259,000.

Unfortunately for you, under Ontario estate law, a will is not affected by separation. Even though you may have been common law spouses for several years, his marriage survived his death for wills and estate purposes.

Common Law Status

Without a divorce or change in will, the beneficiaries are unaffected by your common law status. That means any married spouse retains title to matrimonial property and designated beneficiaries have inheritance rights. A former spouse may even make a financial claim against the remaining estate for the ongoing financial support they won’t receive due to death. That claim will be due before the balance of the estate can be divided up.

While you have no automatic right to equalization of property after death of a common law spouse, there are some exceptions. If you were financially dependent on your common law spouse, you could file a claim against their estate for support. In Ontario, common law spouses must make adequate provision for dependents in their will.

As much as you care about Charlotte’s feelings, now is the time to contact a ClearWay Law wills and estates lawyer, 24/7 at (877) 978-1669. Besides the cottage, you’ll need to know if Ann is also the beneficiary for Ben’s RRSPs, RRIFs, pension plans or life insurance policy.

The ending could have been less stressful for you. If only Ben had updated his will. What can you do differently next time? Is divorce worth the cost?

What to do with a will after a death? Call our estate lawyers toll free at 844-466-6529

Estate Law Firm

Let’s start with Ben’s finances. The cottage and townhouse Ben and Ann owned have gone up by $445,000 since they married in 2009. Ann brought the townhouse into the marriage. It has gone up by 58 per cent. Ben owned the cottage when they married. It’s up in value by 34 per cent.

Since Ben and Ann combined their assets when they married, they each had a claim on any profits from selling the cottage and townhouse. The cottage was just an occasional weekend retreat and Ben lived there exclusively after they separated. Ben couldn’t afford to buy Ann’s share of the cottage or townhouse after they separated. Since they each had a home to live in and worried about how Charlotte would cope with their split, they never really discussed selling either property.

Had Ben divorced Ann, that would have forced a decision on how to share their joint assets. If they couldn’t agree, the courts could have arranged for the cottage to be sold. (Ontario’s Partition Act can force divorcing spouses who can’t agree to sell joint assets.) Ben and Ann would have gotten an equal share of the 34 per cent bump in the cottage’s value. Since the cottage went up by $170,000 since they married, Ben’s share would have been half ($85,000), minus what it cost to sell. An equalization payment, also called equalization of net family property, is what one spouse owes another after assets are divided.

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Family’s Matrimonial Home

The same would apply to Ben’s and Ann’s townhouse. The townhouse was the family’s matrimonial home. It was where Ben, Ann and Charlotte usually lived as a family. A matrimonial home holds many family memories. For children, staying there can make a divorce less traumatic. A court sees past these emotions. It only considers the real property value of the home and preserves each spouse’s right to divide marital property.

But since Ann and Charlotte wanted to stay in Ottawa after the Ben left, Ann could have bought out Ben’s share. With the townhouse now worth $275,000 more than when Ann bought it, his share would have been $137,500 (50 per cent) before sales costs.

Even before any other assets Ben and Ann owned were divided, his estate would have been richer by $222,500. With you now listed on his will instead of Ann, that money could have helped you adjust financially after his death. While it may seem cold hearted to think of money at a time like this, you have your own interests to protect.

Next time you move in together or plan to marry, put updating your wills at the top of your list. ClearWay Law’s wills and estates lawyers can advise you on making or updating your wills. What to do with a will after a death? Our lawyers are available at 24/7 at 844-466-6529

Author: Linda Mueller – Communications Manager