Dying Without a Will in Ontario Is Dangerous to Your Wealth
Laura was in a panic after her sister, Sue, died without a will. She called me because she needed to arrange Sue’s funeral. Laura lived outside of Ontario and planned to take a week off work.
“I have to handle my late sister Sue’s estate. I hope to fly into Toronto next Friday,” Laura said. “I can meet with you after the funeral. I need help to probate Sue’s estate.”
“Did Sue have a will and put you in charge? Did she name you as her estate executor or estate trustee?” I asked.
Laura did not know if Sue had a will. “I hope to look through her house before I start clearing it out. I need to do all of that next week.”
“Well,” I said, “I know you are grieving and feeling overwhelmed. But only executors or estate trustees have legal authority to act. You may not be able to represent Sue’s estate. Privacy laws prevent anyone sharing Sue’s information with you. You can’t arrange vacant insurance on her house unless you’re her executor.
Another concern is that Sue named someone else as her estate executor. You need to look for Sue’s last will to confirm who is her executor.”
“Well, Sue always said she trusted me,” Laura said. “After our brother died, she said she would name me as her executor.”
You Need to Look for Wills
“Okay then you must find her will,” I said.
“Where should I look?”
“Who was her lawyer?” I asked.
“Sue hated lawyers after her divorce. She was broke, had no children and only had the house and mortgage. She told me she would do a handwritten will. She wanted me to have everything.”
“Well, then you have to find her handwritten will. I can check it to see if it will be legal in Ontario. Then I can confirm you can use it to sell her home.”
“How long will that take?”
“Depends if you can find her will.”
“And what if I can’t find it? How long do I have to look?”
“You must satisfy a court that you took all reasonable steps to search.
You may have to call her former lawyers to see if they have a will.”
“Will these lawyers even talk to me?”
“Well, you have a point. Sue’s will is confidential. If you are not named in her will, they may not talk to you. They should be able to tell you if they did a will though. That is a start.”
Problems Selling Real Estate without Wills
Laura was beside herself with worry. “Who will pay the mortgage on Sue’s house?”
“Good question,” I replied. “Her executor is her estate’s legal representative. That’s their job to pay her bills. They must first protect her estate, probate her will and then pay her bills.”
“Okay and what if I can’t find Sue’s will?”
“Courts must appoint you as Sue’s estate trustee without a will. That can happen if you qualify as an Ontario resident.”
Laura lived outside of Ontario. She had no right to apply to administer Sue’s estate unless Sue made a will.
“But I am Sue’s only living relative,” Laura said. “Who else can clear and sell her house?”
“Ontario law only permits persons residing in Ontario to manage intestate estates. Intestate means that Sue died without a will. No executor or estate trustee is named until courts appoint them.”
Estates Are Frozen without Wills
“Laura, this is what happens when persons die without wills. Sue’s estate is frozen by law. If there is no named executor, courts must appoint a legal representative. Everyone who has a financial interest in the estate must first be notified. They may have competing rights that courts must rule on. They all can hire lawyers to represent them. They also have rights to look for wills.”
I explained to Laura that she had options. She could find friends or relatives to serve as Laura’s executor. A trust company or professional may be an option if the estate is sizable. For small estates, this option is often not appropriate or available.
Not Having Wills Is Dangerous to Your Wealth
• you leave no instructions regarding your property
• no one can take charge of your wealth to protect it
• the government’s rules apply to divide and distribute your property
Your entire estate, everything you’ve worked hard for, is frozen. No one has access to information to pay your bills, your taxes or to sell your property. You basically destroy your family’s financial future.
How can you justify dying without a will?
In part 2, I will continue with Laura’s story and her options.Posted By: Ed Olkovich In: Probate, Wills On: January 29th, 2018