What Happens to Your Children When You Die Without A Will?
As parents, we don’t like to think about what would happen to our young adult or dependent children if we were to die unexpectedly. While it may feel like a scary scenario, it’s important to plan for those “what if” events and protect our loved ones as well as our hard-earned assets. Although it won’t ease the grief or sadness, having a will in place helps survivors to better manage such a difficult time and helps avoid lengthy, costly legal and administrative delays. Let’s learn more about what happens to your children and your estate if you were to die without a will.
Guardianship for your children
If you have children under the age of 18 or who require special care as dependent adults, you’ll need to appoint a guardian for them in your will. Without a will or named guardian, the courts will look first to a family member who can care for your kids (such as grandparents, siblings, etc.), or they could possibly wind up in the care of the Children’s Aid Society until a suitable guardian is appointed.
When choosing a guardian for your dependent children, it’s important to talk to the parties involved to ensure this is something they are willing and able to do. Ideally, you’ll want to pick someone your kids enjoy, and whose parenting styles and values you share.
What happens to your assets?
When you pass away, your assets including your home, vehicle(s), investments, money, debt and so on become your ‘estate’. If you have a will in place and have appointed an executor or trustee to manage your estate, then they will be tasked with ensuring that everything is dispersed or bequeathed as you have outlined while adhering to provincial and tax laws. Within your will, you can outline not only how much money or which assets each child is given, but you can also make arrangements for their trust funds, education savings, and so on.
Without a will however, your estate management is put into the hands of “your closest relative” or, failing that, a court-appointed trustee who will divide your assets according to provincial law. There is a rather standard formula for dispersing an estate in Ontario: The first $200,000 plus one third goes to your spouse, and the remainder is split equally among your children. If there is no spouse or children, the estate is distributed to other relatives. In other words, it may result in your children getting less of your estate or that it ends up in the hands of people you never wanted to have access to it.
What happens with a separation, divorce or blended families?
Ontario law doesn’t currently acknowledge separated or common-law relationships when it comes to estate distribution. This means that if you are separated and/or living common-law and you die without a will (or without updating your will), your current life partner may be left out while an estranged, surviving legal spouse could be named as a beneficiary. With all family types including blended families, step-children, foster children and so on, it’s important to have a will drafted that very clearly defines your wishes for all included.
While most people may think that preparing a will and planning your estate isn’t exactly an enjoyable way to spend a few hours, we can all agree that dying without a will in place can have a devastating impact on your children and loved ones. Not only might your children’s care be compromised, but your entire estate could end up being tied up (and eaten up) in the courts for months or years. If you don’t have a will or you haven’t updated yours since experiencing a major life change (such as a break-up, marriage or having children), now is the time to get one drafted. You can rest easy knowing your wishes will be carried out and that you have done careful planning to protect your loved ones and your assets. At Ares Law, our legal team specializes in working with families in Muskoka to plan their estates and draft or update their wills. Make an appointment with us today by calling (705) 645-8743 to see how we can help.
