Ensuring one’s wishes are R-E-S-P-E-C-T-ed and other lessons from Aretha


Matthew Urback Head Shot

Dying without a will means an estate will be dispersed among family in an orderly way, but not necessarily the way the person would have wanted, says Toronto wills and estates lawyer Matthew Urback.

The distribution of assets of a person who dies without a will, or intestate, is governed by a statute in Ontario called the Succession Law Reform Act, explains Urback, an associate with Shibley Righton LLP.

He tells the first $200,000 — known as the preferential share — goes to the spouse.

According to the Act, “the first $200,000 is given to the deceased person's spouse … Anything over $200,000 is shared between the spouse and the descendants (e.g. children, grandchildren) according to specific rules.”

Intestate succession of assets was in the news after singer Aretha Franklin died Aug. 16 without a will. Michigan law suggests her four sons should receive an equal share of the $80-million US estate, reports the Globe and Mail.

The intestate process is similar in Ontario and Urback says it's important to have a will so that a person's assets are distributed as desired.

"The difference is, with a will, you get to pick who you give your assets to," he says. "If you don't have a will, it's all based on statute and the law.

"The way it works is based on a whole chain, depending on who your relatives are," Urback says. "For example, if you have a spouse, if you have a spouse and one child, or if you have a spouse and more than one child."

If there is no spouse or children, then the person's parents are considered, then brothers and sisters, nieces and nephews, and "it goes all the way down the line," he says, adding that assets would go to the Crown if the deceased has no living heir.

"People have the ability to deal with their property however they want in life and, in theory, they are extended the same freedom in death," Urback says. "If you don't have a will, you're giving up that right."

He says if someone wants to do something specific with their assets after death, such as donate to a charity, they should have a will in place. Without it, "you have no choice, it's completely out of your hands," he says.

The law is in place to protect the heirs of those who have not completed a will, Urback says.

"It's meant to benefit your closest heirs and that's the good thing about it — that there is a system in place," he says. "It's a one-size-fits-all approach and it conceptually makes sense. But an estate worth $10,000 is quite different than an estate worth $50 million."

In other words, despite the statutes in place, it doesn't necessarily prevent next of kin from squabbling over the assets.

"It happens. It really happens," Urback says. "The will is helpful because it provides evidence as to what the deceased person intended. Without it, you have no evidence what the person wanted."

He says it’s "quite common" for people to die without a will.

"People don't like to think about it. They don't like to confront their own mortality," Urback says. "Many people don't have wills."

In fact, about 51 per cent of Canadians don't have a will and only about one-third have one that's up to date, a poll released in January reported. And Urback suspects, as baby boomers pass on, the number of people dying intestate will increase.

"It will be more of an issue in the coming years," he predicts.

The value of a will, however, is in the person's ability to control dispersion of assets as he or she sees fit. It also allows for the appointment of the estate's executor or trustee, Urback says.

"If you don't have that, people can apply to be your representative once you pass away, but who can apply is set up by the statute, so you have no control over it," he says. "You should have the freedom to do what you want with your money both in life and in death.

"It's all about control — controlling the choices you make with respect to your money and your property that you've earned throughout your lifetime," Urback says. "One advantage to having a will is that you're giving instructions about what you want to give to your next of kin."

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