Where a person does not have a Will, or where the Will does not address all contingencies, an intestacy can arise. What are the implications of an intestacy?
What does the word “intestacy” mean?
- A Will is also known as a last testament, the last opportunity a person has to make a statement about what will happen with their assets or estate
- Essentially, if you don’t make that statement then the government has set a structure for distributing that property among your family and possibly extended relations
Does that mean that the same rules apply across the country?
- Under the constitution, matters of the person and property matters are provincial
- As a result, you have to look at the rules of the province where the deceased resided to determine who will be entitled to the estate and in what proportions
Is there any consistency of how these rules may operate?
- Yes, if there are no parents, siblings or children then everything goes to the spouse
- As well, if there is a child or children and no spouse, the children share equally
- Beyond that, you have to look to the particular province to know what will happen
What about the concern that the government will take the property?
- Only if there are no blood relatives will property escheat to the provincial Crown
- Understand that the government is not trying to do something sinister with these rules, it is trying to emulate what a person likely would have wanted to happen
Are there any other problems with an intestacy?
- Without a Will, the entitlements of minor children and mentally incapable beneficiaries will likely have to be paid into court
- A government department will monitor how these funds are managed and distributed
- For the disabled, their government support may be jeopardized
- For minors, it will be difficult to make adequate use of the funds while they remain minors and as soon as they reach age of majority
- Finally, the trustees of these funds will not have the liability protection the testator could have otherwise provided using a Will