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Posted 1998/11/23

Law Office of Kenneth W. Golish

Information about Succession Law

(Ontario)


 

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Information in this article is not intended as legal advice.  No warranty exists as to the accuracy of any particular provisions.  Reference should be made to all applicable statutes and caselaw.  You may consult this lawyer or any other for advice.

 

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This article is several years old.
The author no longer practices in this area and does not give advice on this subject.

The law of succession is complicated, but certain aspects of it are important for persons to know so they may settle their affairs and take care of their loved ones after death.

When a person dies, his or property devolves according to his or her will or according to law of intestate succession or both.

Property outside the Estate

A will is said to speak only from death and therefore the property to devolve upon the death of the testator, or a person who dies intestate, can only include what he or she owned at that moment. Some property owned during a person's lifetime does not pass to a person's estate. One example is property held as joint tenants. Co-owners may hold property either as joint tenants or as tenants in common. In a joint tenancy, the interest goes to the survivor or survivors. Only in a tenancy in common does an interest pass to the deceased person's estate.

Also not included in a person's estate are benefits under an insurance policy or pension plan which has a designated beneficiary other than the estate.

Intestate Succession

When a will disposes of all a person owns, no intestacy occurs. However, when no valid will exists or when a will does not dispose of all the testator's assets, succession follows according to certain rules. Here is a table of the rules:

Survivor

Distributions

If a spouse

All to the spouse

If a spouse and one child

Preferential share ($200,000) to the spouse, remainder split equally between the spouse and the child

If a spouse and two or more children

Preferential share to spouse plus one third of remainder, two thirds divided between children

If no spouse and one or more children alive

Children share equally: If one child is deceased, but has children, those children get their parent's share equally (representation)

If no spouse and no children, but grandchildren

Grandchildren share equally regardless, no representation.

If none of above and a parent is alive

Parents share equally, or if only one parent, parent gets estate absolutely

If none of above, and at least one surviving brother or sister

Brothers and sisters share equally with representation.

If none of above and at least one niece or nephew

Nieces and nephews equally with no representation.

If none of above

Next of kin of equal degree of consanguinity to the intestate equally without representation, degrees of kindred shall be computed by counting upward from the deceased to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.

If none of above

Her Majesty the Queen (escheat to the Crown)

A will is not invalid only because it is witnessed by a beneficiary, but the gift to the beneficiary becomes void. A will is also not invalid only because it is witnessed by an executor. Moreover, the executor's appointment is still valid although a gift to an executor would not be.

Revocation of Wills, Codicils

You should know about circumstances that would result in the revocation of your wills. A will may be revoked by making a later valid will or a declaration in writing executed in the same manner as a will. A testator could also revoke a will by a burning, tearing or otherwise destroying the original by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it. Finally, a will is also revoked by a later marriage, unless the will says it is made in contemplation of marriage or unless the spouse, within one year of the death of the testator, chooses to take under the will.

A revoked will may be sometimes be revived. Revocation and revival of wills is a complicated area. However, it is sufficient to know that a newer will revokes a former will, but a codicil does not. The formalities of both documents are the same, but the difference is that a codicil must evidence an intention to amend an earlier will. Therefore, in order to avoid revoking a current will, something in the codicil must validate the original will.

Divorce and Voided Gifts

A divorce does not revoke a will, but a divorce will void any gift to a spouse and any executor appointment of a spouse. Of course, it is only a final divorce and not a separation that operates this way.

Substitute Gifts

The Succession Law Reform Act makes a special provision regarding gifts that might lapse when the beneficiary dies before the testator: Unless a contrary intention appears by the will, where a bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, and leaves a spouse or issue surviving the testator, then the devise or bequest goes to the spouse or children or both of the intended beneficiary as if that beneficiary had died intestate. It is important to note that substitution only occurs within these enumerated classes of relatives: child, grandchild, brother or sister. Thus a bequest to an uncle, friend or even a step child who predeceases the testator would lapse and fall to the residue of the estate or into an intestacy.

Effect of Family Law on Succession

Certain family law provisions effect succession law in Ontario, both in respect of estates involving wills and those involving intestate succession. This prevents individuals from doing in death what they cannot do in life. For instance, obligations to support a spouse or a child do not end upon death. A dependent spouse or child may apply to the court for a support order of support from the estate. Similarly, a spouse who would be entitled to a division of property, may elect to take that division rather than what would be available to him or her through a will or intestacy.

Administration of the Estate

Estates, whether intestate or otherwise, are supervised by the court. An executor applies for probate or another interested party applies to administer an intestacy. Executors appointed in a will do not a have to serve but may decline their appointments. If there is no accepted appointment of an executor under a will or if there is an intestacy, a relative may apply to administer the estate. In case of a dispute, generally, the closest relative applying will receive the court appointment. Failing any such appointment, the "Public Trustee," an office of the Province of Ontario will be appointed.

Where part of an estate is under a will and part is intestate, the executor appointed under the will is charged with administering the entire estate.

The usual first order of business is to pay the debts of the estate. The estate, until wound up, will continue as a legal entity for income tax purposes. In the administration of your estate, trustees are permitted to make only certain types of conservative investments. In fact, they should convert risky investments into conservative ones. However, a trust may authorize property be held in the manner in which it is received, for instance, the continuation of an existing business or enterprise.

An executor is entitled to a fee, generally 5% of the value of the estate. Additionally, other expenses, including court administration charges and legal fees, will also come out of the estate. When a lawyer acts both as executor and also does legal work for the estate, he or she is not permitted to charge both the executor compensation and a legal fee.

I am no longer doing wills. However, many lawyers do them, so call around or check the yellow pages.

Law office of Kenneth W. Golish

Law office of Kenneth W. Golish

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