The risks of not making a Will

worried woman

Making a Will can seem like an unpleasant or dreary task to be put off indefinitely. However, there are serious implications for the loved ones of someone who dies intestate (without a Will). This article highlights some of the consequences associated with not preparing a Will.

1.Your estate will be distributed under the rules of intestacy

A person who dies without a Will is considered to have died “intestate”. Legally speaking, an intestate person has left no instructions as to how they wish for their assets to be divided and distributed on their death. In such circumstances, provincial legislation governs how property will be distributed amongst surviving relatives. Typically, these rules indicate that if a married person dies, an initial lump sum amount will be left to their spouse, plus a portion of the residue of the estate (the amount depends on whether there are any children of the deceased). If there are children, the residue is divided proportionately between any children and the surviving spouse.  Where there are no children or spouse, the estate generally goes to the next of kin.

2.There is no opportunity to appoint guardians for minor children

One of the most important aspects of a Will is appointing a guardian to look after minor child in the event of an untimely death. In the event all of the legal guardians of a child pass away without leaving Wills, a Court Order will be required to select a guardian for the child. In the absence of such an order, the applicable provincial government would become involved.

3. There is no named executor

An executor is typically named when a person prepares their Will. An executor is someone who is trusted to administer the estate according to the deceased’s wishes. However, if there is no Will, there is also no appointment of an executor. As such, someone must apply and be appointed to act as administrator of the estate, which may result in delay, expense and frustration for family, friends and loved ones.

Other potential implications of not creating a Will include:

  • Stepchildren and, in some jurisdictions, unmarried partners will likely be discounted from the estate;
  • Families may face additional administrative burdens which add to suffering at an already difficult time;
  • Familial disputes may arise; and
  • Expensive legal action may be required to resolve complications.

There are many risks associated with not preparing a Will. As such, it is crucial that everyone prepare a Will, preferably with the assistance of an experienced professional who can ensure that it is done properly.

For further information or assistance with drafting a Will, please consult a TEP.

Disclaimer

An article of this kind can never provide a complete guide to the law in these areas, which may be subject to change from time to time. The opinions and suggestions made within this article should not be interpreted as specific advice in relation to any particular individual or individuals. Neither STEP, the article author or their firm accept responsibility for any loss occasioned by someone acting or refraining to act on the basis of the opinions and suggestions contained in this article. More