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Friday, November 6, 2009

If I die without a Will, my wife gets everything. Doesn't she?

Something I hear quite often from people is that they are not going to make a Will because they are married and they believe that everything they own will, because of the fact that they are married, go to their spouse when they pass away. Unfortunately, this is not necessarily the case.

Every province and territory in Canada has a law which says what happens to the property of someone who dies without a Will. In Alberta, it's the Intestate Succession Act. This law works together with other arrangements you've made, such as beneficiary designations (in insurance policies, RRSPs, pension plans etc) and joint titles (such as on your home or cottage). This combination of laws will decide who gets what from your estate when you pass away without a Will.

When you pass away, if you are married and everything you own is either in joint names with your spouse or designates your spouse as the beneficiary, then yes, your spouse will get everything you own. If you have any assets that are in your own name, then those assets are governed by the Intestate Succession Act.

The Act says that if you pass away leaving a spouse and one child (legitimate or otherwise, a minor or adult) then your spouse gets the first $40,000 of your assets and the rest is split evenly between your spouse and your child. If you leave a spouse and more than one child, the spouse gets the first $40,000 and one third of the rest. The other two thirds are divided equally among the children.

Note that this distribution includes children of previous relationships as they are your biological children. It also includes adult children with whom you might not have a relationship at all.

If you still have, for example, a life insurance policy that names your first spouse or your parents, that policy will still be paid to your named beneficiaries. If you own a cottage with your brother as joint tenants, the cottage will go to your brother and your spouse will not inherit any share of the cottage.

People are often surprised, and not always in a good way, when they realize how intestacy laws would apply to them and their families. It is a huge mistake to assume that you know how the law would apply to you when you have never asked a lawyer. If you have a family, you should have a Will properly prepared by a lawyer.

176 comments:

  1. When you pass away, if you are married and everything you own is either in joint names with your spouse or designates your spouse as the beneficiary, then yes, your spouse will get everything you own. If you have any assets that are in your own name, then those assets are governed by the Intestate Succession Act.
    ----can you please help me more understand..because i can not see this in the succession act.. Iam concern because my uncle pass away without a will and his legally adopted son want to take his share. how about if the property is outside Alberta?

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  2. You are not going to find my statement verbatim in the Intestate Succession Act because it's a combination of several laws working together. Hopefully this answer will help you see how they fit together.

    To clarify the first part of this, if your uncle owns anything in joint names - whether that is his house or his bank account etc - that item goes automatically to the other joint owner (section 121 of the Land Titles Act).

    If your uncle owns anything that designates a beneficiary - such as a life insurance policy or RRSP - that item goes to the person who is named on the item itself (section 580 of the Insurance Act).

    So if you look at everything your uncle owns, then take away his joint assets and his assets that designate beneficiaries, that leaves you with assets in his own name.

    These assets are normally dealt with by a Will but your uncle didn't have one. This is where the Intestate Succession Act comes in.

    You didn't mention whether your uncle is married, so I'm assuming that he is not. Note that a spouse doesn't have to be legally married to your uncle. If he lived with someone in a relationship of interdependence for three years, that person qualifies as a spouse. An adopted child has the same rights for inheritance purposes as a biological child.

    To apply the Intestate Succession Act, we look first to see whether your uncle has a spouse (section 3 of the Intestate Succession Act). As mentioned above, I am assuming he does not.

    Where there is no spouse, we look to children (section 4). I know there is one son. If he is the only one, he is entitled to the whole estate. If there is another child(ren), the estate is divided equally among them. If there was a child who died before your uncle died, that child's children take the child's share.

    I'm also assuming that you are acting as the administrator of this estate. If so, please be careful in applying this advice to your situation, because I don't have the full facts about the family or about the assets. This is general information which I really hope is helpful, but you should probably sit down with a lawyer and give the full story to make sure nothing is missed.

    Best of luck,
    Lynne

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  3. my biological father passed away in February, a few days ago my half sidter requested that I fill out and sign a document stating that he has been mentally unstable and addicted to drugs since 1998. I first met him in 1998 and he was not mentally unstable or addicted to drugs at that time. I maintained a relationship with him up until the day he died, I spent his last two weeks in the hospital with him. I do not know what is happening with his estate but I think there may be a will mentioning myself which is why I am being asked to sign this document, the final line reads-I have no interst in his estate. I refuse to sign this document but I do not know how to go about finding out if I am mentioned in his will or if there is a valid will. I did see handwritten will in which I was mentioned and this is why I think I am being as to state my father was unstable. Any advice you can offer would be appreciated.

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  4. In my view, you were right not to sign any documents because you haven't yet been fully informed of what is going on. The document with the sentence about having no interest in your father's estate might have been intended to have you waive your inheritance, or it might have been intended to have you renounce any right to apply for Letters of Administration.

    It sounds as if your half-sister is either acting as an executor under a Will, or as administrator who intends to apply for Administration.

    You need to see a lawyer. If the Will you saw is valid, you might be entitled to a share of the estate. If there is no Will, the estate will be distributed according to intestacy laws, and as a biological child you are entitled to a share.

    I urge you to find a Wills and Estates lawyer who will, first of all, find out what's going on and whether there's a Will. Once you have a handle on that, you and the lawyer can decide whether anything should be done, and if so, what. I wish you the best of luck.

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  5. When one half of a couple passes away in Alberta,not having a Will. Do they freeze bank accounts, or stop you from selling property that is in both your names.

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  6. If you have a bank account that is jointly owned by you and the deceased person, it should not be frozen. Accounts that belong just to the deceased person may well be frozen. Same thing for a house or other assets that are held as joint owners with right of survivorship, i.e, you can deal with them. Because there is no will, you (or another family member) will most likely have to apply to the court to be appointed as administrator of the estate. Once that has happened, you can deal even with the assets that are frozen.

    Lynne

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    1. if your father dies in Ontario (live there) and i would like to be an administor of the estate, do I have to live in Ontario. I am told that because I live in Nova Scotia (his Daughter) I can not apply to be the administor of his estate

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    2. My understanding is that to apply to be an estate administrator in Ontario, you must live in Ontario. If there isn't any family member living in Ontario who can do it, consider calling a trust company in Ontario to see if they'll do it (the fees are lower than you think).

      Lynne

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    3. Hi Lynne thank you for your reply. I am wondering about my father's many vehicles that he had bought prior to his death. If they are insured loans to be paid when he dies and are only in his name do the vehicles after being paid out by insurance become his own property or joint between him and his wife? I know she has very bad credit and could not be included on the many vehicle loans for his business. If they are not automtically joint property who do I contact to try and have those said assets divided between myself and my sister? Myself and my sister both live out of province myself in NS and my sister in Alberta and to date my step mother has excluded us on all official documents including denying our existance to law enforcement who searched for and recovered his body. The OPP refuse to send me any information in his very suspicious death including refusing to tell me who identified his body, who called the police and who was there when he went missing. I am looking for any advice to help resolve my estate concerns and initiate investigation or distribution of not only my fathers financial matters but also the facts surrounding his disappearance and inexplicable cause of death. Also my father always had a seperate life insurance policy for my sister and I split equally but again have no way to gain his financial records to find out what company holds that policy and if I can find out where the policy is my step mother will not send me a copy of his death certificate is there any way to request a copy for myself? Is there any "easy" way to prove I am my fathers daughter and add myself to the police reports and records? Lastly if my step mother has sold any of my fathers possessions or vehicles not in her name to date since his death can she be held financially responsible and ordered to pay any amount that should have been divided between his heirs? I know thats a ton of questions but any answers or direction would be so greatly appriciated!
      Thank u!

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    4. Do vehicles that are paid by insurance at time of death become part of your estate?

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    5. Katie, I don't know what you mean by "vehicles that are paid by insurance".

      Lynne

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  7. I just found out that my husband cut me out of his will 12 days after our youngest child was born!He always used to say that I will be a very rich woman after he passes away and now I find out that even though technically he leaves everything to the kids he names his 68-year-old father and later his estranged sister a sole Executor.The will actually mentions something about "no payment be made to the Guardian",meaning me.Was it even legal for him to do that if we are still married?I never needed anything for myself but I wanted to protect my kids' rights and I have no faith in my husband's sister to do right by my children when the time comes.

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  8. Well that's a heck of a thing to find out about your husband. That would throw anyone for a loop.

    You didn't mention which province you're in, but there are general rules that apply across the board. Sure, it's legal for him to change his will. The bigger question is whether the will would stand up in court. All parts of Canada provide that a spouse can't simply be cut out of a will. Because you are married (or common law) he has an obligation to you, and vice versa.

    This means that if he should die with that will in place, you will automatically have a right to contest the will to get a share of the estate. I'm not advising you to do that, as I don't have all the facts, but I am letting you know that in Canada, we can't simply cut out spouses without them having something to say about it.

    Unfortunately, contesting a will is an expensive, time-consuming, emotional process.

    I've never seen the "no payment to a guardian" clause used when people are still married, but yes it's possible to do that. It doesn't mean that the kids won't be supported from the estate (if they are minors), it means that trust funds for the kids would be managed by the executor rather than by the parent (i.e. you).

    What an uncomfortable situation for you. I sincerely hope you two figure out what's at the bottom of all this and set things on the right path again.

    Lynne

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  9. My brother in laws father died in Nova scotia, without a will, his mother was not married to him( she was still married to another man) but they had lived together for over 30 years, they had one son together, but there are 2 half brothers from her legal husband, she then dies also with out a will, what needs to be done , and who is legally the heir to the fathers property( value approx 18,000.00)

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    1. Hi. I don't practice law in Nova Scotia, but I'll tell you wnat I think based on what I know about their system. It would be a good idea for the common-law wife and her son to consult a lawyer in NS.

      A common-law relationship is not recognized for the purpose of intestacy in NS, which leaves out the common-law wife, so the father's estate should be going to his son. The son and the common-law wife should decide between them who is going to administer the estate. Depending on the type of assets, it's very possible that there will be no need to have the courts appoint anyone as administrator.

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  10. I am living in Newfoundland and my mom is very ill. She does not want a will. I have a brother and sister living with her are they entitled to everything she owns because they are living with her? My Dad passed away two years ago.

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    1. Hi. I'm sorry to hear about your Mom. This time is stressful, I know.

      I don't know why your Mom wouldn't want a will, since it could prevent a lot of disputes, but if she doesn't want one, nobody can (or should) force her. Perhaps she just doesn't want to worry about legalities and money and wants to focus her time on her family.

      When someone in NL passes away without a will, the estate is distributed according to the Intestate Succession Act. You can see it for yourself at www.canlii.org. As your dad has already passed away, your mom's estate should be divided equally among all of her children. If one of her children has passed away before her, that child's share goes to the child's children (your mom's grandchildren).

      The fact that your siblings live with her shouldn't have anything to do with the size of the share they get.

      It sounds like your mom owns a house. If so, and she passes away without a will, one of you will have to apply to the court to be appointed as her administrator.

      lynne

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  11. My father died in 2011 and lived common law for 10yrs. He did not have a proper will. We are his 4 children. He had the paperwork ready to make my brother executor and had spoken with him on this before he had an accident and died 3 days later. At the time, my father being the advocate for many community causes had concerns that he may be sued and he put his common law wifes name on the deed of the house that was fully paid for. He had $16,000 in his personal account. The wife divided the $16,000 between us 4 kids giving us $4000 each.The wife wasnt able to keep the house for financial reasons so she sold it for a $200,000 profit. When dad first passed away, we discussed this issue with her as she wanted to know what we kids thought was fair (she came into this relationship with nothing and walks away with all of our fathers assets which will be passed on to her children which we feel is not morally right. She asked us what we thought was fair and we replied that we feel she should be entitled to half the proceeds of the house sale with the other half divided amongst us 4 children. She was put on the deed of the house to protect the assets as my dad thought there may be a lawsuit coming that would affect his property ) We are reasonable people and she does deserve to be looked after yes, but now that the house has sold and closed a week ago, we hadnèt heard from her as to what she was going to give us kids. Last night we found out she wants to give us $3000 each from the $200,000. That comes to a total of $7000 per child for a total of $28,00 to his kids and she walks with almost the full profit from the sale of the house and we feel its not morally right. We discussed with her what we felt was the right thing to do and that dad wouldnt have agreed to a 95/5 split. Told her to keep the $3000 cheque and sit on it and think about doing the right thing and do the right thing to honour our fathers legacy. Don't know what is going to happen next but do we kids have any hope of proving to a judge that our fathers intentions were not to have her walk away with pretty much the whole shootin' match? We are struggling and he was our father! We have been very patient with her while the house was up for sale for over a year and a half. She's moved on with her life and all our dads money! It may be this cut and dried in a court of law but I would like to know if we have a chance of disputing this. Thank you for reading and hope to hear from you.

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    1. My brother and I are pretty much in the exact situation as you. Common law status and will direction gave her residue of the estate which is OUR family home. We get a cash gift of less than 5% of the entire estate and she walks with the ability to sell the house for 900000 having not contributed anything to it.
      The laws that protect common laws who aren't even married that don't protect the biological adult children of their inheritance and family treasures, is a bunch of nonsense. Google articles on how Ontario succession laws disinherit adult children of first marriages. We are not alone

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    2. This is a tough one, I know. Although you feel that it is your family home, in the eyes of the law it belonged to your father, not to your whole family.

      You are right that adult children are not "protected" by inheritance law. You have no rights at all to anything your parents own. It's theirs and they don't have to share it with you. The law considers you to be able to look after yourself.

      The law does not "disinherit" you. That word suggests that you had a right and it was taken away. Your father had the right to transfer property to you while he was alive, to place assets in a trust for you, or to leave things to you in his will. But you have no right to claim anything. None of it was ever yours, even though you apparently feel that it was taken away from you.

      You mention that "she" has not contributed anything to the house, but neither have you. Even though you might have once lived there. It's not your family home; it's your father's home.

      Blended families are an emotional roller coaster for the kids, as you are finding out. Don't look to the law to make you feel better, because it's not about feelings.

      Lynne

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  12. Is it possible to have a person's name removed from financial accounts etc. because they are mentally ill? My sister-in-law is a very out of control addict. My brother has a few businesses plus their personal stuff. Is it possible to have her name removed from things due to her mental state? Family doctors have said they would back my brother however, I am not sure if a doctor's observation/letter carries weight.

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    1. You can't remove someone's name from something she legally owns because of mental illness. However, that doesn't mean there isn't a way to deal with this.

      Your brother can be named to legally deal with her assets on her behalf. This would mean that she would still have ownership, but that she would not have access to the assets and therefore wouldn't be able to spend or damage them.

      Usually this is done by a power of attorney but I'm not sure that would work in this case. A power of attorney would require your sister in law to have the mental capacity to sign the document voluntarily.

      If that isn't going to happen, your brother can apply to the court to be appointed as a trustee for her assets, and if necessary, a guardian for her as well. This is where the doctors would come in. You can only get trusteeship or guardianship for another adult if that adult is incapacitated, as evidenced by a doctor's report.

      If your brother wants to see if either of these ideas would work for his situation, he should see a lawyer who does this kind of work.

      I hope it all works out.

      Lynne

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    2. i feel like i am in the same position cuz i feel like if my dad having an affair and if he dies our house is going to be spilit in half and i'm worried sick every day .. dont know what to do :(

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    3. Sarah, it sounds as if the weight of the world is on your shoulders. I wish I could make you feel better. The fact that your dad may or may not be having an affair may not have any impact on what happens to your house. I assume that you live with both of your parents and you are worried about your home possibly having to be split between your mom and another woman. However, just being someone's girlfriend doesn't entitle a person to part of the estate. If your father is having an affair and if he did pass away, the other woman can't claim anything just because they were involved. He would have to be married to her, or at least be living common law with her.

      Lynne

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  13. My Dad died without a will and he was paying on a car. My mother has no license and cannot afford to pay for the car. I called the finance company and they told me they cannot discuss any details if there is no will and no executor. What should we do?

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    1. First of all, make sure your mother understands that if her name was not on this car loan, she does NOT have to pay it. For a while the bills will continue to arrive at the house, addressed to your father. You have already advised them that your father has passed away so now the ball is in their court.

      If the bill goes unpaid, the finance company may choose to re-possess the car. Realistically though, they want the money, not the car. In which case, they are going to have to talk to you or your mother sooner or later.

      None of this affects your mother's credit if her name isn't on the loan.
      Lynne

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  14. hi lynne i need you'r help badly we are living in manitoba canada but its been few years that i found out my dad is suspicious .. he says his not been with anyone but once this lady claimed to be his wife and his been active in few dating site ... he says his going to give us a will and put our name as a beneficiary ... i just wanna know if he give us a will can our inheritance be protected ? or if he dies can her wife get's everything or at least half of it ... :)

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    1. Ok, I have no idea what you mean by it's been a few years since you found out your father is suspicious. I'm ignoring that bit.

      I certainly hope your father makes a will, since even his own kids don't know whether he's married. Seems like it could be pretty confusing when he passes away.

      If your father makes a will that names you kids as his beneficiaries, and it turns out that he is married, the wife can make a claim to get some or all of the estate. She would have to prove either that she is married to him, or that she qualifies as a common law wife under Manitoba law.

      With proper planning and advice, a lot can be done to reduce the chance of this kind of claim and to ensure that your father's wishes are carried out. He should not make a do-it-yourself will as he needs to discuss his plans with a lawyer. A lawyer with some experience in this area can help figure out who is involved in the estate and how to make sure that your father's wishes are carried out.

      Lynne

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  15. Hello Lynne:
    My father died suddenly almost 2 years ago. He did not leave a valid will ( started one ).He was married to my mother and I have one sibling. Would the Intestate Succession Act be applied to his assets ( savings, rrsp investments, etc. )As well, there is a civil lawsuit concerning his death. In the event of a settlement, would the assets be divided according to the Intestate Succession Act ? Many thanks for your advice.

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    1. Hi Sarah,

      Yes, if your father died without a valid will, the laws of intestacy that apply in your province will be used to figure out how his estate will be distributed.

      You mentioned RRSPs. These assets, as well as pensions, life insurance and some other assets usually name somebody as the beneficiary. If your father has named someone, those assets are not in his estate and are not governed by the intestacy laws.

      Yes, any proceeds of a civil suit that are payable to your father (or his share of a settlement that involves more than one person receiving funds) will be paid to his estate and divided according to the law.

      Someone will have to apply to the court to become your father's estate administrator. It seems odd that in the two years since he died, nobody has done that.

      Lynne

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  16. Hello Lynne:
    This is Sarah again. I have another question for you.Are offspring entitled to know the contents of the deceased's estate before it is settled.( again my father died intestate) As mentioned, my father passed away almost 2 years ago and I have yet to be have been informed of the value of his estate. Should I contact the lawyer dealing with this ? I assume that my mother has become the estate administrator although I have not been informed of this. As you can probably see, I feel that I am being left out of some decisions and information sharing dealing with this matter. I appreciate again your thoughts and advice on this.

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  17. In Alberta can you contest the intestate law? Background
    Father stopped talking to son 10 years ago but had a relationship with daughter. The deceased had no will. The deceased daughter "thinks" the deceased son doesnt "deserve" anything and apparently she is gathering extensive extrinsic evidence to make sure the deceased son gets nothing.

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    1. In my opinion, the daughter will have a tough time with her case. The law is not based on who deserves what; it's based on the blood relationship. If this were in BC, she might have a much better chance.

      Lynne

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  18. I am in British Columbia. My mother passed away in April 2013 (in British Columbia). She had a will that apportioned 55% of her estate to her husband (my step-father). However, her husband predeceased her 3 years earlier. Is the will still valid? And if so, what happens to the 55% allocated to her husband? She apportioned the remainder of her estate: 30% to be split amongst her siblings, and 15% to be divided amongst her children (my 2 sisters and I). Any advice you can provide would be much appreciated.
    Regards,
    LouLou

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    1. Hi,
      Yes the will is still valid even though a beneficiary passed away before your mother did (assuming that it was valid to start with).

      To find out what happens to the 55%, read the gift to her husband in the will. If it was a will made by a lawyer, it should have what is called a "gift over". This means it should say, for example, if my husband survives me by 30 days, he gets 55% of the estate, then goes on to talk about what happens if he does not survive that long. That would be standard in even the simplest will.

      If for any reason the will doesn't say anything about what happens to the husband's share, it is most likely going to fall back into the general estate and be distributed as part of the residue (which you have referred to as the remainder).

      If you are the executor, it would be worthwhile for you to sit down with an estate lawyer who can read over the will with you. The wording in wills varies so much, and even one little word can make a difference.

      Lynne

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  19. Dear Lynne ~ my family and I are hoping you may be able to provide us with some advise. Our mother passed away 8years ago in Alberta without a will. Her "estate" was left to her husband who has now also passed away (1 year ago)in Saskatchewan with no will. To date we have not been advised of how our step-fathers "estate" was settled and presume our 2 step sisters have divided the funds amongst themselves. My sisters are wondering if this is legal? We realize the estate laws are different from province to province, but we feel we should be considered in the settlement of our Mother's & Step fathers estate as well. As mentioned our step sisters haven't contacted us regarding the estate. We're really struggling with how to handle this situation. Any suggestions or advices as to how we should pursue? Has too much time passed to pursue the estate? Appreciate any advices you may have. Thank you

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    1. The reason this seems confusing to you is that you are thinking of the estate as belonging to your mother and step-father. It no longer has anything to do with your mother, as you said she died 8 years ago and left the estate to her husband.

      Now that he has passed away without a will, his estate will pass to his heirs according to the laws of intestacy in his province. The law of intestacy does not include step-children. Therefore there is no reason why his children should have contacted you regarding the division of the estate.

      The error here, in my view, was in your mother's planning. Quite often, people who are in second marriages will set up their wills so that at least part of their estate will go to their children, and not all to the second spouse. However, it's quite possible that she believed her husband would make a will leaving something to you, and who knows, if he had made a will, perhaps he would have done that.

      I know this isn't the answer you wanted, but this is how I see it.

      Lynne

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  20. Hi Lynne and thanks for your great blog....You are helping many people by providing these articles and opinions for all to see. I have a quick question: My mother-in-law purchased a car while married (to her third husband). It appears as if they split on the price of the car however the ownership is in her name. She has recently passed away. What should happen with that car? Does it become her husband's or does it get sold with the proceeds going to the beneficiaries?

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    1. Hi James. Thanks for the kind feedback.

      If the car is solely in your MIL's name, it belongs to her estate. If the beneficiaries agreed (in writing) to give it to her husband, the executor could do so. Otherwise it is sold and divided as you mentioned.

      Lynne

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  21. Thanks Lynne for the quick reply!! I have since been told that the ownership of the vehicle is in both their names. Does this make any difference moving forward?

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  22. Hi, My step-father, Canadian, died almost 10 years ago. He was married to my Costa Rican mother and he was very close to his retirement at the time of his death so he was living mostly of the time in Costa Rica. He came to Canada for a few days to sign papers for his retirement and suddenly got a heart attack and died in Edmonton. My step-father unique brother called my mom and told her not to go to Canada because there were no laws to protect her or to give her rights (he thought they were no married). The case is that I traveled with my mom to Canada and we paid funeral and bills from his cell phone and Red-Cross that none of his relatives paid. I discovered that this guy (his brother) had told the funeral home to release a death certificate saying that he (the brother) was the only survive relative alive. Soon I discovered it I asked for a new certificate indicating the name of my mother. My step-father had a car and other things that we did not know totally because he did not have a will. My mother receives a pension from the Government of Canada and she got (because she was the beneficiary) everything from his work association. However, his brother (who had no good relation with my step-father) did not tell us nothing about his car or any other heritages that they could have together from their mother, who was alive at that moment but suffering of Alzheimer. A coworker of my step-father told me to wait 10 years and to check at the central bank in Canada if they can investigate about any frozen account, savings or whatever else under my step-father’s name, so my mother can check if there is something else she can have the right to ask for. Is this true? How can we investigate what happened with my step-father car, house which belonged to his mother, and any other things? Also, My younger brother was legally adopted by my step-father. Thank you for help.

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  23. Hi Lynne, My brother in law(sister's husband) died without will. This is in Ontario, Canada. He has 2 children both above 18 one of them is married. He has some bank accounts and govt is his trustee. only one bank account is under govt trustee. None of bank accounts are joint so my sister cant have access to the money. How can she have access to the money and does she have to get the lawyer as govt. is her trustee and would his daughters get the right on his money?

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  24. Dear Lynne, My mother has recently passed away unexpectedly in Alberta. My mother has been married for over 20 years to someone who is not my father. My mother had told me that she has a will but when I asked her husband about her will he said he does not know what I am talking about. Now that he is saying there is no will and I have no proof of this what is going to happen to all her personal belongings. Me and my brother have never been close to her husband and he is not even talking to us about anything. Do we have any rights in regards to our mother belongings or does he just get everything?

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    1. It's not really all that strange that a person in a second marriage would make a will without the participation or knowledge of his or her partner. I've seen it many times.

      Did your mother happen to mention where she got her will made? A lawyer or law firm? If so, you could make an enquiry there. Just so you know, if your mother's will is found at a law firm, they aren't going to give it to you or even show it to you unless you are the executor named in it.

      If your mother did make a will that does not leave the estate to her husband, it seems unlikely that she would have named him as the executor, so there is a reasonable chance that you or your brother have been named.

      If no will is found, your mother's estate will be divided according to the laws of intestacy, which means that you and your brother will be entitled to a share of the estate.

      If he is being unco-operative, you may end up hiring someone to represent you in discussions with him. Not to fight with him, but to have conversations on your behalf which would be very painful or difficult for you to have on your own.

      Lynne

      Delete
    2. Dear Lynne, I am responding to your reply about my mother who passed that I wrote you about July 22, 2014. Her husband says there is no will and I have no proof at all. I have found out that the house they have was in both there names. So does this mean me and my brother get nothing. Her husband will not talk about anything with me. I am the only female in the family I would even like to have her personal items. He wont even discuss this with me. Do me and my brother have any rights in Alberta without a will from my mother. You mentioned my mothers estate will be divided according to the law. What is all classified as my mothers estate if everything is in both there names?

      Delete
  25. Dear Lynne, I am responding to your reply about my mother who passed that I wrote you about July 22, 2014. Her husband says there is no will and I have no proof at all. I have found out that the house they have was in both there names. So does this mean me and my brother get nothing. Her husband will not talk about anything with me. I am the only female in the family I would even like to have her personal items. He wont even discuss this with me. Do me and my brother have any rights in Alberta without a will from my mother. You mentioned my mothers estate will be divided according to the law. What is all classified as my mothers estate if everything is in both there names?

    ReplyDelete
  26. Hey Lynn. I was trying to figure out the Intestate succession law. My parents died in an accident, my father at the scene and my mother a few hours later. My siblings from my mother's first marge have taken my father's entire estate placing it into my mothers estate and then distributing it evenly between all siblings. This is frustrating because my grandpa on my father's side estate is still being settled and all property, heirlooms and cash, are going to half siblings who were moved out of home before my mother and father were married. All family members on my father's side (uncles and cousins) are very upset with this distribution of my grandpa's estate but when discussed with my siblings are simple told, "what we are doing is legal." Is the intestate succession laws really setup this way in which a family has no right to their own ancestral belongings simply because one spouse died a couple hours before another in the same accident?

    ReplyDelete
  27. HI Lynn,
    My sister died in a car accident in Alberta in July 2014.. She had no will. She was living with a guy in Alberta but was from Nova Scotia where she had a house. She owned no assets in Alberta. She bought the house while they were together. She has 4 children, 3 are from a previous relationship, 1 from the guy she was living with in Alberta. Who is entitled to her house in NS? The 3 kids are adult. Does the guy she was living with get her house and all her assets in NS? She has life insurance that was left to all her kids. She did not leave anything to the guy she was living with. Please help with any information.

    ReplyDelete
  28. Hi:
    I hope you can help. My husband and I had a legal separation back in 2010 but got back together after 8 months. We have been together ever since. He passed away in September 2014 suddenly without a will. Now his estranged son has gotten a lawyer and claims we are not married and I'm not entitled to anything. We had a joint home together. In Ontario. thank you for any advice M

    ReplyDelete
  29. Hi Lynn,

    Husband dies in February 208th 2014. No power of attorney or will left. He and his lining wife have a joint house. How can the wife become the Executor, so to file his tax returns and have the right to sign and pay what he owes to CRA/government.

    Thanks,

    Jim

    ReplyDelete
    Replies
    1. Hi Jim,
      Where there was no will left behind, a person can apply to the court to become an administrator. This is similar to being an executor, except that court appointment is necessary before there is any right to act on behalf of the deceased. The wife would be the logical choice.

      There are two options. One is to hire a lawyer to prepare an application for the wife to become the administrator. The other option is for her to prepare her own paperwork.

      Which is the better option? That depends on a few factors. One is the complexity of the estate. Another is the wife's comfort level in dealing with legal paperwork. She can find the forms she needs by going to the Queen's Printer. Those forms come without any instructions, but she may be able to find instructions or assistance online. She can also go to the Interesting Links section of this blog to see if there is a link to a probate kit in the province in which she lives (I believe there are links for Alberta, BC and Ontario).

      Lynne

      Delete
  30. My mother and step father lived common law for 25 years, they had joint ownership in property, no will done for either one.. our mother passed in 2013 and our step father passed recently... They have no children together but my mother has 3 children and step father has 2....would we be in titled to any other the property if still in both names? We are in nova Scotia and I know you don't practice here but was wondering if u had any info we could go on

    ReplyDelete
  31. Hi Lynne,
    My father passed away almost 8 yrs ago without a will.
    At the time of his death, there were 7 family properties which i was managing and know of.
    All the properties were in my step mother's name.
    I am wondering if my brother and i are entitled to an inheritance since everything was in my step mother's name?
    My step mother has been selling one property each year since my father's death.
    There are only two properties left which one of them is on the market right now. (She's asking for $999 000) for that property)
    Am i authorized to place a lien on the properties?
    My step mother and i used to be on very good terms before my father's passing up until 3 years ago... We stopped talking because she placed far too much responsibility on me to help support the properties. As soon as i stopped financially helping her, she stopped contacting me.
    While my father was in palliative care, my step mother told my father that there was no piont in drawing up a will due to the fact that everything was in her name.
    My father responded by saying his wishes are that he would like each of his children to receive a property. (My older brother, my step sister, and me.)
    Do i have any right to try to claim an inheritance in this case?
    Thank you for your time and this article Lynne!

    ReplyDelete
    Replies
    1. I don't think you're going to like my answer to your question. If the properties were in your step-mother's name, your father would have no control over them at all. Even if he had made a will, they weren't his to give away.

      I know you said they were family properties, but the titles were in her name. This means your father must at some point have transferred them to her. He must have had his reasons. Many men do this when they are business owners or for some other reason want to ensure that personal assets are never available to satisfy debts of a business or partnership.

      Your father apparently made a verbal statement of his wishes, but it's not binding, for two reasons. One is that, as I said, the land wasn't his to give away. The second is that a verbal wish is not a will, even if he did own the land.

      I don't see a claim here based on inheritance law.

      There may or may not be a claim based on the circumstances of the transfer of the properties from your father to her. For example, if the transfers were done while he was ill and heavily medicated, or he was tricked, or for some other reason the transfers were fraudulent.

      Lynne

      Delete
  32. My stepfather passed away, he married my mother as a second wife. He have 3 children from the first marriage. Is my mother entitled to any of his assets like money in the bank and other things

    ReplyDelete
    Replies
    1. If your mother was married to him when he died, then as a general rule she is entitled to a share of his estate. Even if he left a will leaving it all to someone else, she may well be able to get some of the estate, but a lot of factors will come into play. One of the factors will be the terms of any pre-nuptial agreement. Also very important is whether he left her any assets directly, such as jointly owned property or accounts, or through beneficiary designation, such as life insurance or RRSP.

      If she has been left out entirely, I strongly urge her to see an experienced estate lawyer to talk over the facts, and to do so quickly.

      Lynne

      Delete
  33. Hi Lynne:
    My mother passed away in 2010 and was on the land title as the owner of the family farm. There are 9 children (myself included) but as there was no will and she has minimal debts, the family paid off the bills and do ensure the land taxes are paid every year BUT we have been unable to come to an agreement as to who should be the executor of the estate as the land title is still in her name. As there was no agreement, no one really got any information on what HAD to be done to ensure the estate was settled. There is no intent to sell the land as all parties are in agreement that it stays in the family just not sure what the next step is. Is it necessary to get a lawyer to settle or is there a simpler solution as funds are limited?

    ReplyDelete
  34. Hi Lynne,
    My grandfather passed away last year and did not have a will. My uncles and aunts have been disputing over the distribution of funds ever since. One uncle in particular, along with his wife, were made power of attorney's prior to his death to handle all of this financial affairs. There is perhaps a total of $200,000 in assets (or so they claim) and they are trying to claim $100,000 as payment for things they paid for on behalf of my grandparents over the last 10 years. Leaving only $100,000 to be distributed evenly amongst 7 brothers and sisters. my grandmother had passed away 4 years ago and all of her assets were inherited by my grandfather. My parents, along with my aunts and uncles are at a loss as what to do. What would be your best advice in this situation? None of us trust this particular uncle and aunt to do what's right but we feel like we are at his mercy because him and his wife were made power of attorney's prior to my grandfather's death. Help!

    ReplyDelete
  35. Hello Lynne,
    My father had passed away last year and didn't update his will when he got married. He was with his wife for two weeks before his wife went back to belize. he left his estate to his four grand children and his LIF to my sister and I. There is questions regarding his death as suspicious. He lived in Manitoba. My sister has applied to be the administrator of his estate. What are the legal ramifications regarding his new wife and her entitlements.

    ReplyDelete
  36. A question, please. I am planning on creating a will but I am having difficulty because I have no immediate family members. My grandparents, parents, and only sibling are dead. I never married, nor do I have children, nieces or nephews. My question; can I leave my estate to whomever I chose, or will some member of my extended family have inheritance rights? I live in Nova Scotia.

    ReplyDelete
  37. Because I have no immediate family [grandparents, parents, spouse, children, sibling, nieces or nephews]when I create my will do I need to make it clear that I do not want any extended family member to receive any portion of my estate? I want to leave it to a dear friend. I will be governed by the laws of Nova Scotia. Thank you for your attention.

    ReplyDelete
    Replies
    1. You don't need to specifically state that no extended family will receive anything. You are entitled to leave your estate to your friend. There are certain people who have a right to contest a will that omits them, but none of those people (spouse, child) are relevant to your situation.

      I would suggest that you consider what will happen to your estate if your friend passes away before you do. Consider appointing an alternate beneficiary, such as a charitable organization. If you name your friend and he/she dies before you, you will be intestate unless you name an alternate beneficiary, in which case your extended family will receive your estate.

      Lynne

      Delete
  38. Hi Lynne,

    I have some investment properties in the GTA area in Ontario with my mother...she's my business partner. I have an 8 year old son with my ex. We were never married and dated for a few months back in 2006 and a child came out of it. I have made a will up back in 07 with instructions on how to distribute the money to my son with the executor being my mother (parents). Without making this too long, is there any way that my ex can contest my will feeling that my son should get the money not as an excuse to get her hands on it?

    Thank you

    ReplyDelete
  39. Hi Lynne.
    I'm in desperate need of information! My mother passed away 2 months ago without a will. She has been living commonlaw for 7 years. The husband is still living in the home which both they're names are on the title. She has valuable gold and personal belongings still in the home. He is making it very difficult for myself and 2 brothers to go into the home and collect her things. We're now worried he is selling valuable items behind our back before we even get a chance to see it. My Q IS what are his rights to the personal belongings in the home and what happens if he has been spending her money before we found out about it.
    Please help ty

    ReplyDelete
    Replies
    1. Common law rights vary widely depending on the province of residence. And I really mean widely - in some provinces they are equivalent to legally married spouses and in others they have no rights at all. You should probably talk to a lawyer in your province.

      Household items that are used by both parties, such as linens, furniture, decor items, etc are generally considered to be jointly owned. Personal items such as jewelry are not jointly owned.

      Find out whether the house was jointly owned or tenants in common. Both are set up with two names on the title, but if they were tenants in common, her half of the house is still in her name. If the house was jointly owned, it now belongs to the husband.

      Part of the problem here is that without a will, you don't actually know whether you are beneficiaries. You don't know whether you're actually entitled to anything at all. If your mother lived in a province that has legal rights for common law couples, all of the estate may be going to the husband. Don't assume you're entitled just because you are her children, as this will depend on the value of the estate. Again, ask a lawyer who is local because the laws vary so much across the country.

      If you let me know which province you're in, I can give a few pointers but this would not be as effective for you as sitting down with someone local.

      Lynne

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  40. Hi Lynne
    I wonder if you could help please? I am in Alberta and have been separated from my husband for over two years and have signed a Settlement Agreement, but are not yet divorced.
    I have had a new will written and in the event of my death my estate will pass to my two children. The one situation I didn't think about was if i and my children were to die at the same time. Would my estate pass to my husband (as we are not yet divorced) or to my mother as next of kin? I think perhaps I need to have something added to my will.
    I am really hoping you can help as I have looked all over the internet without success.
    Many thanks.
    Jane

    ReplyDelete
    Replies
    1. Hi Jane,
      The law that applies to your situation is Alberta's Wills and Succession Act, section 60. It says that if you die leaving no other successors, your spouse inherits your estate. Yes, it would be a good idea to clarify this in your will.

      Lynne

      Delete
    2. Jane, sorry but I hit "enter" before realizing that in your first sentence you said you'd been separated for more than two years. The Alberta law goes on to say that if the separation has been more than two years, he does not inherit the estate. Having said that, it's still a good idea to ensure your will covers all reasonable eventualities.

      Lynne

      Delete
    3. Many many thanks Lynne.
      I think my lawyer dropped the ball by not advising me to have this eventuality covered in my will. She was fully aware of my martial status. Would most lawyers suggest that in the event of the death of the person writing the will and the death of the beneficiaries that it should be declared where the estate would then go? I feel very let down by my lawyer and having approached her about this situation she has suggested I pay her $525 an hour and she will remedy the problem.

      Delete
  41. Hello
    I have been separated from my husband for 10 yrs - no divorce. We have 2 grown children. He is living with someone.
    My question is how does Alberta's laws work in a situation like this if he dies? Would I be considered his widow when it comes to CCP, etc?

    ReplyDelete
  42. This comment has been removed by the author.

    ReplyDelete
  43. hello
    i have been separated from my husband for 5 years and we were getting a divorce but my husband passed away before the divorce was final.....now am the widow right......my adult kids wants to take me to court to fight for the house...the house is on my name only and i think my husband took me off the life insurance....can i contest this....and do i get his pension from his job....even if i am not the beneficiary.....am his widow... in texas

    ReplyDelete
  44. My father drew up a power of attorney in my name and my sister's name and his last will in 2010 at his lawyer's office with the instructions that whatever his spouse (second wife) was entitled is hers to keep and whatever we as his biological children were entitled is ours to keep.

    Since my father knew that I would look after him because of health issues and my sister lived far away, I became the joint bank account holder with unrestricted access and my own debit card in my name.

    My father never held funds jointly with his spouse during their marriage and she never had access to the joint bank account.

    In fact, the monthly bank account statement was mailed to my father's house with my name on the envelope for several years before he passed away in 2014 due to terminal cancer.

    Days before he passed away, he stated that I should withdrawal most of funds in the joint bank account and leave aside a few thousand dollars to pay any outstanding bills including his future funeral and burial because he knew his spouse would not pay a dime toward those costs and she would leave his children with paying the bills.

    Needless to say after the will was probated, she is demanding return of the funds I withdrew because she considers them as part of the estate while my position it was a considered a gift the day we became joint bank account holders thus creating a trust never mind the fact I also had power of attorney.

    Does his spouse have claim to those joint bank funds as part of estate or should those joint bank account funds be treated as a gift to me and my sister ?

    ReplyDelete
    Replies
    1. There are rules that apply when an account is held jointly between a parent and an adult child. The account is not considered in law to be a "true" joint account - one in which the child gets to keep the account when the parent dies - unless there is some separate documentation from the parent that says so. You said that the will states that you get to keep whatever you're entitled to, which I have to say, seems an odd and unhelpful thing for a will to say. In any event, the will doesn't mention the joint bank account, so that doesn't help you.

      The issue is this: joint accounts between parent and child are to be held in trust for the estate until it can be determined whether that extra evidence exists. A verbal statement from your father isn't going to help. It has to be something in writing. Without it, the law says that your father only put you on the account for convenience or assistance, and the funds belong in the estate.

      I would suggest checking with the bank where the joint account was held. Ask them whether any notes were taken by the clerk who set up the account that might show your father intended it to be a gift to you. Otherwise, you're probably out of luck.

      Lynne

      Delete
  45. Please help I live in AB my common law spouse passed suddenly no will we were in a common law relationship and in that time purchased and paid off a home
    He has one surviving child who now is wanting me to sell our home so they can have what is theirs. There was no will no life insurance. What are my rights and what is my next step I cannot seem to get answers in my community

    ReplyDelete
    Replies
    1. To answer this, I need the following info:
      1. whose name is on the title to the house?
      2. How long did you live together?

      Lynne

      Delete
    2. We purchased as a couple hence both names are on the land title we moved in together at time of purchase lived together for 6 years and we paid the home off as a couple last year.

      Delete
    3. If you two owned the property as joint owners, you now have the right to that property. Check your title to see whether you are joint owners, or tenants-in-common. It's most likely that you're joint, but please do check because it makes a difference. If you were joint owners, they can't make you sell the house to get what's "theirs" because it's yours. However, if you are tenants-in-common, then half of the house belongs in his estate and that's what they're asking for.

      Because you lived as a couple for more than 3 years, in Alberta you are called Adult Interdependent Partners. That means that you have the right to claim against the estate for some or all of your partner's estate. You could probably use that leverage to keep the house even if it's a tenants-in-common situation.

      You need to talk to a lawyer who has some expertise in this area. If you live in a small community in which lawyers don't specialize in wills, you might have to talk to someone in Edmonton or Calgary who specializes. It would be worth it, because I think your situation is probably stronger than you realize. In Alberta, common law spouses have strong inheritance rights.

      Lynne

      Delete
    4. The title is in both of our names and we were joint owners. I have since learned it is now my home
      Thank you so much your clarification

      Delete
  46. Hi. I wondered if you could help me. I was living wiv my boyfriend for 8 years.. we shared everything, even his record decks and records. He suddenly died a few months ago and now his mother is demanding everything including decks and records. He didnt leave a will. His mum already has taken and sold his car, shes cleared out his bank accounts and closed them. I tried to explain anything he already had before he moved in with me i will give to her but she wants it all. Can i put my foot down with her or something? Surely i must have a right somewhere in all this?
    Thank you

    ReplyDelete
    Replies
    1. Which province do you live in? The law is different for common law in different places.

      Lynne

      Delete
  47. Hi Lynne,
    My estranged father recently passed away in BC without a will. I was contacted by a lawyer regarding this matter (hell of a way to find out your father is dead as my awful step mother couldn't be bothered to call me). He said I could call any time with questions but I couldn't think of any at the time. I know the new legislation that came in in BC in 2014 under WESA means his estate will be divided up between his current spouse and my sibling and I. Is his house included in this or does she automatically get it because she lives there? I am not 100% sure that her name is on the house. How long, approx, does it take to probate an estate in BC where there was no will? Thank you!

    ReplyDelete
  48. My father passed away without a will, he had no assests and owed nothing, he only has a vehicle which was gifted to him by my brother, what happens to the vehicle now, my mom doesnt drive, and wants my brother to have the car back. Which is fine by all of us siblings.

    ReplyDelete
    Replies
    1. If your father passed away without a will, his estate goes to the beneficiaries set out by law. That will be your Mom. That means that she can do whatever she wants with it, including selling it or giving it to your brother. It's great that all of you agree, as family harmony is rare.

      Lynne

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  49. My husband is procrastinating about his will. We have a house on a piece of land. He has 1/2 title to his land with his brother. We have no kids. What would happen if my husband died intestate? We plan to move to house on the land. Would I be kicked out of the house if we're living there? What can I do to protect myself? We live in Manitoba.

    ReplyDelete
    Replies
    1. The answer to your question hinges entirely on whether your husbands "1/2 title" is set up as joint ownership or tenants-in-common. If he and his brother are joint owners, his brother will own the entire house on your husband's death. So, in that case, yes you could be kicked out. If your husband and his brother are tenants in common, you would inherit your husband's half of the house. His brother would still own the other half. If he tried to kick you out, there would probably end up being a court fight. To know for sure, you need to see a copy of the title that describes their ownership. If there isn't a copy of this in your husband's records, you can check the title by going down to the land titles registry and simply doing a search (it's only a few dollars, not expensive but certainly worth the peace of mind).

      Lynne

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  50. Hi Lynne,
    I need help and advice please. My spouse and I are common-law for 17 years now, not legally married, have 2 children and live in Ontario. Unfortunately I just found out he has another accidental child which happened even before we lived together. there was no marriage or no DNA test, they just found out 8 years ago through searching ads, this child now a 30 years old.
    the house we live in now is under my name only. my concern now is if I don't make a will, and in the event that one of us or both die, this accidental child can claim part of the house?
    and if I make a will and clearly state my beneficiaries are my only 2 children can have the house. would that accidental child still can claim?
    please advice

    ReplyDelete
    Replies
    1. I would suggest that you make a will. Nothing good ever happens when you pass away without one. It would be ideal if you and your spouse would sit down together with an experienced wills lawyer to create a plan that will work whether you pass away first or he does.

      The accidental child, as you call him/her, has no claim at all on your estate. However, if your spouse passes away without a will, the accidental child has exactly the same inheritance rights as any other biological child of your spouse. Because that child is 30, if your spouse had a will that excluded him/her, it would be very difficult for that child to get anything from your spouse's estate.

      So, if you think this through, if you two don't take some steps then yes, that child could end up getting part of the house. For example, you die with no will, and your spouse claims dependent's relief (that is, he needs all or most of the estate to support himself). Then, he dies without a will so everything in the estate (which now includes your house) would be divided three ways.

      Making a will as you suggest is a good idea, but you really the need the protection of a good will made for your spouse as well.

      Lynne

      Delete
    2. I will definitely make a will and name my 2 children as beneficiaries. should i include my spouse in the will, or it doesn't matter because my spouse still entitle it regardless he is on the will or not.?
      my spouse has no estate at all, nothing under his name. except his bank account. so if i make a will, all my estate go to my 2 children, and my spouse's will is also to 2 my children, then am I safe to say that accidental child can not claim anything from us.?

      I didn't quite understand when yo said "I really need the protection of a good will made for my spouse?"
      thanks for prompt response

      Delete
  51. Hi Lynne
    i just want to clarify. If i have a house under my name only and my will is for my 2 children only. I heard that regardless what is on my will, my common law spouse will still have half due to matrimonial house?
    thanks

    ReplyDelete
    Replies
    1. That depends on which province you live in. For example, in NL common laws have no right to the house, but in AB they do if they've lived together for 3 years. It's different in every province.

      Lynne

      Delete
  52. Hi Lynne

    If a woman were to leave her husband and live with another man for more than three years, would she be able to claim her husbands Estate through intestate succession if his will was designated to someone else but failed to comply with certain formalities. This happened in B.C. in 1968. When this woman left her husband she purchased a house with the other man, claimed she was a widow, and purchased the home with her new partner using an alias. Could you please advise me if any of this is legal, and if not, what type of criminal offences has she broken.
    Thank you

    ReplyDelete
    Replies
    1. I don't practice criminal law, so I really can't help you with that.

      Lynne

      Delete
  53. Hi Lynne , if my husband and i purchase a house together does my stepchildren has the right portion on that house in the event that either one of us died. We have 6 year old daughter together and were from ontario? Would my daughte auyomatically inherit my portion if i didnt make a will? And also i have life insurance , rrsp solely on my name and we have business together.- thanks chantel

    ReplyDelete
    Replies
    1. When you say that you and your husband purchase a house "together", do you mean that it will be owned as joint tenants? If so, on the death of one of you, the house will go to the other one by right of survivorship. This means nothing is available to the kids, either yours or his.

      Do not assume that if you die, your child automatically gets your share (and by this I think you mean your share of the house). It depends on a lot of factors. If your husband is alive, then no your daughter won't inherit it automatically. Make a will.

      Lynne

      Delete
  54. Lynne, I'm in NL and my son was living common law with a lady for 6 years. He has passed away, leaving her and her 10 year old son (the son was not his, but he was supporting him). He has a home that he purchased before meeting this lady. Her name is not on any documents for the home. Would she have any entitlement to the home?

    ReplyDelete
    Replies
    1. I'm so sorry to hear about your son. I assume that he also lived in NL (this is important because common law rights vary a LOT from province to province).

      In NL, a common law spouse has no right at all to inherit anything from the partner's estate, including the home. If they had been legally married, she would inherit the house, but the same right does not exist for common laws. I don't practice family law, so I won't venture to speculate as to whether she might have some right to support or property division under family law.

      Lynne

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  55. My husband has two adult daughters from a previous marriage. If he passed on without a will, what would be legally mine and what would go to them? I imagine whatever my name is on would automatically go to me, but what about whatever money is in his bank account?

    ReplyDelete
    Replies
    1. The money in the bank would be part of his estate, which would be distributed according to the intestacy laws of your province. The numbers vary province to province and you didn't say which one you're in. Most provinces have a set amount that goes to the spouse, and if there is more than the set amount, the rest is divided between the spouse and the children. I assume that you mean you are legally married, as in some provinces common laws have no rights at all. So, in other words, you didn't really give me enough information in your question to give you a precise answer, so all I can provide is very general info.

      Lynne

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  56. What happens if there are no assets in an intestate and there are debts owed in BC? Does the person applying for letter of administration have to pay these debts out of their pocket?

    ReplyDelete
    Replies
    1. No, the administrator appointed does not pay out of his or her own pocket. He or she must do whatever possible to maximize the estate (e.g. apply for CPP death benefit, sell whatever assets there are even if they are small) and then pay the bills as far as the estate money will extend.

      Lynne

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  57. Hello Lynne,
    We are interested in buying a house in NL. There is no will from the last parent who passed away away in Oct /2015.There is a single legally adopted son. Can we proceed with the purchase of the house? Thank you in advance.
    Klee Hunter

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    Replies
    1. I think you may have left a few things out of your question so I couldn't possibly answer it. Did the house you want to buy belong to the estate? Has anyone applied to the court for letters of administration? Are you the adopted son, or a beneficiary, or in any way involved in the estate?

      Lynne

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    2. Hello Lynne

      If a friend died in B.C and had a Will that did not meet all of the required formalities, however that document named a beneficiary to his bonds and literary work, would this incomplete Will be considered a testamentary document for the items mentioned, and would his estranged wife be able to contest this document.
      Thank you

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    3. The will in its entirety is either valid or invalid. Unfortunately if the document does not meet the requirements to be a valid will, all parts of it are invalid.

      Lynne

      Delete
  58. Hi Lynne,
    I'm married to a man who has two adult daughters from a previous relationship. The two of us live in my house (in Ontario) that I bought and paid off totally on my own prior to our marriage. I'd like to update my will so that all my assets, including the house, can be used by my husband after my death only while he's alive, but after his death, everything goes to my nephews. My husband agrees with this approach. It's a long story but we have good reason for doing this. If I have a will that states this, and I die first, then my husband dies a year after, will my nephews still get the house and assets? Can one of my step-daughters get access to any share of the estate if my husband does not have a will? I know that the intestancy laws here say that if he dies without a will and a spouse, then the two children get everything.
    Thanks,
    Gina

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    Replies
    1. Hi Gina,
      The situation you're describing would involve you putting the house in a trust until your husband passes away. The title would never be in your husband's name, so whether or not he has a will does not impact the house or anything else held in the trust. All is controlled by your will, not his, so no, his children will not have access to the assets. I suggest that you have your will created by an experienced lawyer because you don't want to try to write a trust on your own. Also, you need to ensure that you and your husband are fully advised about any matrimonial rights he may be waiving.

      Lynne

      Delete
  59. Hi my dad had a power of attorney y no family member...my dad died in 2012 we reside in Quebec.he left y as executor and inheritor of his assets!!!!...he was still legally married to my mum !!!!my mum developed dementia during his last year of life and started putting things in her name!!y never made enough money to have what she has!!!!upon my dads death it was weeks before I was informed because I brought this to his attention since he was due to help pay the residence center so told y he did want us informed!!!I know she has helped liquidate his property before his death and provided no allowance for anything!!my dad some money!!!kinda power if attorney!!!!executor !!!inheritor!!!while I struggled to pay my mum's things !!the extra rent !!clothes extra I think we deserve that money that we needed to look after her!!!she died in December and many things I have learned that my dad got bonds for someone and y tried to cash them by asking the manager to sign them!!!my dad knowing my mum was not in her right mind got her to sign a house sale which she never received half!!!!!!There was money given several thousand to a neighbour of my dads!!!etc!!etc!!!etc!!

    ReplyDelete
    Replies
    1. I can tell from the number of exclamation marks that you're outraged by the situation. You haven't asked me a question, so I assume you just wanted to share your story. It sounds as if your Mom was taken advantage of, and possibly your dad was as well.

      Lynne

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  60. Father died without will. His wife has been separated (although no legal documents) for over 15 years. Does she have any rights to his estate or does it all fall to his adult children? Do they need her legal consent to apply for administration of estate? This is in BC.

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  61. 2014 My husband made he's will, an guess what, he place he's two sons 28 years old most worst gang in the town, one of them stold he's 10.000 committed fraud!!!! How ever my man met me 2015 July an we married 31january 2016, I love my man to death with all my heat an I protect him for these rats children punch of takers!!!! They don't like me in the family at all those vampires, we had argued about this dam will he made at the past years an I am try to explain that if he died sooner than me I am the one who will be kicked out from our farm house so I need to secure my future in Canada with you told him, an need it to be change all, put my name in your assets told him, he doesn't he thinks just because all he's exes toke he's half almost land, maybe it's me too, well for me it's so hurtful after all I did for him, he did this will in a lawyer with a two witnesses too posted in Winnipeg too, please advice me if Manitoba law covers me some how an at list can keep our farm house not the rest farm.. I am not from Canada I am from abroad.. an I don't have anyone in this world all my closed relatives died last year an my sister gives her fight with cancer ... I called the legal advice an she told me he can not sale anything with out your permission too, it doesn't matter., please tell me is this will valid still after we married for Manitoba law?

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  62. Do my sibblings and i have a right to our adoptive dads will.

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  63. Hi Lynne

    Hoping you can give me some info on my mother's situation

    My mother has been married to her husband for 28 years......he has recently been put in a home as a result of having dementia......my mother is not on the deed to the house......they have a joint account.....rrsp with each other as beneficiaries etc.....my mother is very concerned with what happens to the house if he passes away......also she wonders what happens if she passes and then he passes.....he has no biological children ......theres no will that my mother knows of.....she is also wondering if there is a way to find out if he has a will registered somewhere.......this is in Nova Scotia

    Thanks in advance

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  64. Hi Lynne,

    Hoping you can help me here.

    My son's father(my ex) passed away 3 years ago with no will and my son was still a minor. He had no other children or spouse.

    It was agreed by the family that my son'so aunt would be the administrator of the estate. She stopped including me little by little with the happenings of the estate. She would say the lawyer keeps making mistakes and that is why nothing is settled. My son is now 19 and she claims she is still unable or will not transfer the estate money to him. The estate value is $80k. She told my son she invested half for him. Also the plan for the money all along was for my son to go to school. She will give him small amounts to pay tuition (a semester at a time) the checks she provides say the estate of. Recently she refused to give my son some money to pay for his testing at collegeastgate or money for his second semester. My question is with my son being the sole heir of the estate should it not be passed to him. Also is there any legal recourse that he can take against his aunt for investing his money? We are in Ontario

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  65. Can a spouse write you out of the will in Manitoba and can you contest the will if he did we are stilt married but separated in July 2016 my husband is dying any day now and left everything to his 2 children

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  66. Can a husband write his wife out of his will in Manitoba Canada he left everything to his 2 children we have been married for 22 years and was going for a separation in July of 2016
    He wild be deceased in a few days

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    Replies
    1. I assume that "was going for a separation" means that the two of you now live apart with the no intention of reconciling. Although people tend to think that there has to be some kind of magic "legal separation", if one of you has moved out, then you are legally separated.

      The question you've asked is a bit simplistic for the situation. As a general rule, a husband cannot leave his wife of 22 years out of his will, but sometimes they do anyway. So the question is not really whether he can do it, but whether you can successfully challenge that.

      If you only separated a few months ago, it's possible that you and he have not yet made a full division of matrimonial assets, including the home, bank accounts, vehicles, pension, etc. All of that has to be sorted out before his estate is settled. This ranks ahead of beneficiaries. Otherwise, the executor won't actually know what's in the estate since some of it might be going to you as part of the matrimonial property division.

      Another issue that will come into play is whether or not you have a claim against the estate as a dependent. On the face of it, a spouse is legally always a dependent, but that again will depend on the facts. You may have a settlement agreement with him for child support, alimony, etc. It will have to be worked out how much of that survives him, and must come out of his estate.

      I know this is a complicated answer, but without more info about the state of the matrimonial division of property, I can't simplify it.

      Lynne

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  67. Is the wife is a beneficiary of a irrevocable life insurance is this considered a part of the estate and can you recommend a really good lawyer because this is going to be very messy his child hate her

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  68. Is a legal separation agreement signed in 2006, binding that no money exchanged hands, (I owed her $88,000. for balancing the assets and she owed me half the value of the matrimonial home estimated at $$220,000.in 2006? We were still Married and living in Ontario. She just passed October 2016. Home is joint tenants. A hand written will leaves all her worldly goods to our 3 adult children including the matrimonial home. The 3, in their 30s feel that they are entitled to everything including the RRSPs that have me as the beneficiary. I have told them that they can have the over $200,000 rrsp minus the government tax. Does a separation agreement become void with the passing of one of the spouses or can heirs make claims to the $88,000 as set out in the separation agreement? Thank you, Rob

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  69. Is a Legal Separation Agreement signed in 2006 binding, where no money exchanged hands, (I owed her$88,000 for balancing the assets and she owed half the value of the matrimonial home assessed at $230,000 in 2006)? We were still Married and living separately in Ontario when she passed October 2016. Matrimonial home is in Joint Tenancy. A hand written Will dated 2009, leaves all of her worldly goods to be divided equally to our 3 adult children including the Matrimonial Home. The 3, in their 30s feel entitled to everything, including the RRSPs that indicate me as the beneficiary. I have told them that they can have the $200,000. RRSPs minus the withholding and estate tax. Does a separation agreement become void with the passing of one of the spouses or can the heirs make claims to the $88,000. as set out in the separation agreement? Thank you, Rob

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  70. Hi, my mother passed away without a will. My lawyer tells me that my brother and I have to share her estate with my nephew as he is my sister's (she passed away too) share. Another lawyer is telling me this is not correct, that it should be split two ways between my brother and I. Your input would be appreciated.

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    Replies
    1. I believe the estate should be split three ways, with your sister's child taking her third. Each province has its own intestacy laws, but they are all similar to each other. In each one that I've seen, the share of a parent who is intestate is shared among the children equally, with the share of any deceased child going to that deceased child's kids (biological and adopted but not stepchildren).

      Make sure whatever lawyer you're dealing with does a LOT of wills and estates, because dabblers in any area of law can be dangerous.

      Lynne

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  71. Hi Lynne -
    One question - can I leave my entire estate (in Ontario) to my children (16 and 19)in my will even though I am still married?

    ReplyDelete
    Replies
    1. This is a question that doesn't have a "yes" or "no" answer. Could you legally prepare a will that leaves her out? Yes. Could she contest it and win? Probably.

      Those are the short answers. The answer that you, specifically, need might not be the same, depending on the facts. A spouse is automatically considered a dependent and therefore entitled to a share of your estate for his or her support. But each case turns on its own facts and there are situations in which a spouse might not be able to claim, or the claim would be less.

      For example, you're married, but are you separated? Did you sign a prenuptial agreement? Are your children also her children? Is she financially dependent on you? Have you left her assets outside your estate, such as joint property or life insurance? All of these things affect the situation.

      Lynne

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    2. Thanks Lynne - I am actually the wife and am fully dependent on my husband - they are both our children and we are not separated or divorced (no prenup).

      Delete
  72. my uncle was married for 5 months to lady from Greece, he was in poor health but got married then died of a heart attack while on their honeymoon. he lived in toronto canada and had gotten married in toronto. she dose not have her residents and is on a temperate stay in canada, dose this mean even though they were married for such a short time dose she inherit everything? there was no will made befor he died and has quite a few assets, my brother and i would like to know if we are eligible for anything he left behind. we were his closest family and he had no children, we were his nephews.

    ReplyDelete
    Replies
    1. When someone dies without a will, the law of intestacy in their province says who gets the estate. In Ontario, where you said your uncle lived, the Succession Law Reform Act is in place. It says that where there is a spouse but no children, the spouse gets the whole estate. That means your uncle's wife gets it all. The fact that a marriage is brief before one partner dies doesn't negate the law. I know this isn't the answer you wanted, but at least now you have an answer.

      Lynne

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  73. Hi Lynne, My husband recently passed away, we are in Alberta, he has a legal will which leaves everything to me and I am the executor. Our children have no intentions of arguing the will. What do I do? Do I need a lawyer to settle the estate? He had his own bank accounts and investments but the house is in both of our names. Very lost and confused. Thank you

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    Replies
    1. Hi,
      I'm sorry to hear of your husband's passing.

      You don't necessarily need a lawyer to help you settle the estate. Legally, you can do it yourself if you feel you can handle it. If you have good support from a financial advisor or banker, that will help a lot since there is always paperwork to be done for pensions, insurance, etc.

      One of the first things you will have to determine is whether the will needs to go through the probate process. That is always a decision made based on the specific assets and the specific situation.

      Since the house is in both names, you can go to the land titles office without probate and get the title changed to your name only. There will be some paperwork to sign and you'll need to give them a death certificate.

      Probate may or may not be needed for the accounts and investments.
      If they are in an RRSP or RRIF and they name you as beneficiary, you will not need probate to get them. You will have to do some paperwork with the bank, though.

      If the accounts/investments are not registered, and are more than a few thousand dollars, my guess is that the bank or investment holder will require you to get probate before they release the funds to you.

      If you're feeling overwhelmed, hiring a lawyer to handle the estate would take the pressure off. If you're just not sure you want to work with a lawyer, you could pick up a copy of my book called "Alberta Probate Kit" (at Indigo, Amazon, etc or from the publisher, Self-Counsel Press). It has tons of information and tips, plus if you decide to go through probate without a lawyer it has all the forms with detailed instructions.

      Lynne

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    2. Thank you, I guess a lawyer may be best then as he had substantial investments that are not registered. I appreciate the response.

      Delete
    3. If you're near Edmonton or Calgary I can recommend a few really good estate lawyers.

      Lynne

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  74. Good evening,

    Can you help me please...my former common law spouse passed away and I have been awarded the life insurance policy payout and pension benefits as I am the sole beneficiary listed on both policies. We have been separated for 2 years, residing at different addresses.
    There is no will, children or a current spouse on the deceased's end. Instructions are pretty clear and straightforward concerning payout.
    I am simply required to provide originals of the death certificate to claim the funds but I have been refused by Service Canada when I requested copies as I am not considered eligible to order this information. What can I do? I am now stuck in limbo, unable to get one or the other. Should I engage a lawyer to pursue the matter on my behalf? I am in Alberta. Much appreciated!

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  75. I live in Ontario and my grandparent is dying and they had a joint bank account with my aunt who passed away months ago. Her husband thinks he's entitled to the bank account once my grandparent dies because they were married at the time of my uncle's death. Are they?

    ReplyDelete
    Replies
    1. Your uncle is wrong. If the aunt and the grandmother owned a joint account and the aunt died, the grandmother would have automatically owned the funds in the account by right of survivorship. Jeez, the things people come up with when they see the possibility of money are just amazing.

      Lynne

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  76. Hello Lynne,
    I received a phone call from an anonymous person the other day. He said my biological father (whom I have never met) had a stroke and is not doing well. He said I am his only living immediate family member. His wife passed a few years ago. His son passed many years ago at age 12. His parents, brothers and sisters have all passed. He has 2 nephews still alive. They have not spoken in years. He does not have a will. The man said his estate is worth $350,000. My question is what do I do after he passes? From my understanding the estate will go to me as I am the biological daughter. With no will and no family would someone be contacting me about his estate? If not, Who would I go to about his estate? Would I have to do a DNA Test (paternity test)? I have no idea what to do, who to talk to. We both live in Nova Scotia. Do you have any links that would be helpful to me? I thank you for your time. Kelley

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    Replies
    1. That is an awful lot of information for an anonymous person to have about you and your family. How did that person know to contact you? Why does he know what your father's estate is worth? Surely you must have asked who he was!

      You asked whether anyone would contact you about your father's estate. The short answer is, I doubt it.

      There is no court official or government department that automatically handles estates. The Office of the Public Trustee would likely step in if the matter came to their attention (maybe by the anonymous guy who called you) and if there was nobody else to take care of the estate.

      If your father had financial assets such as an RRSP or life insurance policy that names you as a beneficiary, someone from that company might look for you.

      You are correct that you should be the beneficiary of the estate, as long as you were not adopted by anyone else.

      As the nearest relative and the only beneficiary, you're the person who would be expected to apply to the court to be appointed as the administrator of his estate. The question is how to do that for someone you don't know.

      Did the anonymous guy give you any useful information such as where your father lives, where he banks, where he works? You need somewhere to start.

      When your father passes away, your best bet is to hire a lawyer who does lots of probate work. He or she will help you track down some information.

      A paternity test is not automatically required. Does his name show on your birth certificate?

      Lynne

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  77. Hi, Thank You for replying. He said he grew up with my mother and father. He still visits my father. He said he has been after my father for years to contact me. No he didn't give me any useful information. My father is 82 years old. He still lives in the same house he grew up in. I have ordered the long birth certificate to see if his name is on it. I will search for a lawyer that does probate work. I thank you for all the information. I know where to start now. Thank You.

    ReplyDelete
    Replies
    1. I hope it all works out. None of this stuff is easy, I know.

      Lynne

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  78. Dear Lynne,
    I am married with no children. My wife does have a child from a previous marriage who is 28 years old not living with us (lives in an other country - not a Canadian citizen), I have none. If we both die at the same time (airplane crash, car crash, etc.) what happens with our assets? Most of our assets are in cash in a joint bank account, we don't currently own any property other than a car and furniture in our rented apartment. Who inherits? Would my wife's daughter inherit all or part (wife's half)? Would my parents inherit the rest?

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    Replies
    1. You haven't said which province you live in. The rules dealing with estates vary from province to province. So, I'll answer based on what happens in most places.

      The general rule is that if a husband and wife perish in a common accident and it cannot be determined which of them died first, the law deems that the younger one survived the older one. In other words, if your wife is younger than you, then the law says you died before her.

      This means that your estate is dealt with first. Your joint account would go to your wife by right of survivorship. Everything that is not jointly owned is distributed on the laws of intestacy, and in your case likely means that everything goes to your wife.

      Then her estate is dealt with. Since by law you were already dead when she passed on, her estate would go entirely to her child. Your parents would get nothing.

      Obviously if you are younger than she is, this would be reversed and your parents would get the whole estate and her child would get nothing (because he/she is not a minor).

      So, make wills!

      Lynne

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  79. Hello,
    My Mother-in-Law , we will call her "K" , had a common law husband for over 27 years, we will call him "M", he passed away March 15, 2017. He was still married to another woman, whom we will will call "R". R knew about K from the time M moved in with her 27+ years ago. Their paths have crossed more than once. K went to M's daughters wedding, years ago. Although R and M never divorced will be a secret to all. Anyhow when K called R to advise her of Ms death, R got nasty and said "you do know I'm his legal wife and I will get everything. M made K beneficiary on his work life insurance policy and his RRSPs. This was not a lot of money, he did have about $40,000 in a bank account that K doesn't have access to. He does own Vintage/Antique cars and motorcycles, which are worth a lot of money. The car club is threatening to sell them for non payment of rent. He also has a lot of tools there as well. The van that K drives as well as all the other vehicles are in his name. I believe the house that R lives in, is in his name as well. My question is, is K entitled to anything else? CPP, money, vehicles, etc.? She did after all cook, clean and made sure he got up in time for work. She was there for him through all of his health issues. Well she was his wife but in all senses of the word for 27+ years.
    Thank you for any insite.
    Terri

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    Replies
    1. It depends on what province they lived in. If they lived in one where common law relationships are not recognized, then K is out of luck. On the other hand, some provinces treat common law as the same as married when it comes to inheritance. This will affect the bank account, the house, and the vintage cars.

      He can leave his RRSP to whoever he wants to, and I don't see how his wife could contest that.

      The life insurance at work is not necessarily clear. The pension administration will have its own definition of who counts as a spouse for its plan. K will have to find out what their policy is.

      In the meantime, you haven't said whether there is a will, but it sounds like there is not. Otherwise all of this wouldn't be an issue. To avoid having the car club try to make a mess of things by demanding money, someone has to step up and apply for Letters of Administration ASAP.

      Moral of the story: if you can't even be bothered to divorce someone after 27 years, for heaven's sake at least make a will. It was very thoughtless of him to leave K in this situation.

      Lynne

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  80. Hello there. Excellent blog here, lots of useful information. My brother recently died in Ontario without a will. He was never married or common law with anyone. He has an adult daughter in Quebec although they have not been in contact for many years. I have no plans to apply to the Court to be named Administrator due to the expense. Howevet i am trying my best to take care of things the best i can within the law. My brother's only incomes were CPP and OAS retirement benefits plus the othe benemies low inome people receive. I intend to apply to CPP for the death benefit since I am paying for the final arrangements. His daughter did sign permission for me to do this as well as have cremation take place. There will be more expenses forthcoming for the burial urn, vault, cemetery fees,etc. This will be well over the $2500 maximum CPP death benefit. I found out they will deduct from this the one month overpayment that was deposited into his bank account the month after his death since he was not entitled to it. So I plan to approach his bank to see if I can gain access to his accounts to help cover these expenses. I've no idea how much he may have nor of what his account number is but I do have his debit/bank card. Do you have any suggestions on how to proceed or pitfalls to avoid? Thanks very much.

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    Replies
    1. Update : His bank was not helpful at all, insisting upon probate even for the request I made to return the CPP/OAS overpayment directly to Service Canada so it would not impact my application for the CPP death benefit, which was mY ma in concern. I had no strength nor patience to argue this with them as by that time my mother had also recently passed away. So I typed up a letter and scanned the supporting documents (my bill from funeral home, death certificate, bill from Service Can stating the amount owed and why). My intention was to mail it to the bank's ombudsman and mail a copy to my local branch (my beither branch was in Scarborough). But then... I found email address for their Ombudsman. So I printed the whole thing to a PDF file and emailed it off as an attachment. It was acknowledged quickly and less than 48 hours later I got a voice mail from the local branch manager saying she had a bank draft for the Receiver General and the amount (which was what he owed Service Can), asking if I would like them to mail it or would I prefer to pick it up and send it myself? I picked it up and took it in person to my local Service Can office so I could get a receipt (as advised by a friend who used to work there). I will be sending my CPP Death Benefit App in soon. Keeping my fingers crossed...

      Delete
  81. My husband and I recently separated. We were together for 17 years - married for 13. I have proposed a separation agreement but he will not accept the terms. We own our home as joint tenants, and we also own a home that was purchased for my parents -my mother is also a joint tenant on this property. My husband acquired four other properties while we were married, all in his name. I have only asked that he transfer the matrimonial home (that our son and I live in) and transfer my parents house to me, and I would not claim a share in the other properties. He wants it all. We will never be able to agree on anything at this point. My question is...what if I do nothing? I don't have money to continue paying a lawyer. If we remain married, and he was to pass, say 10 years from now, would I be entitled to His estate, even though we were long separated? If he was to write a will and leave everything to his new live-in girlfriend and her daughter, what happens to me and my son? I'm just trying to weigh my options at this point.

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  82. Hello, I was wondering if you could tell me something If husband will have an inheritence when his mother passes on, He and his brother are shown as beneficeries of all her possessions. What happens if my husband passes before her. 1. Would his brother just get everything or would his portion come to me as his spouse. 2. Can my husband include in our will that any future inheritances where he is named as a beneficiary be given to myself and our kids. Thanks very much for allowing your followers to ask you difficult questions.

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  83. Hi! I live in Ontario. I wonder what happens to my husband's money in case of death. We don't have any real estate. Just the money in his bank account. He has no will. We have two children.

    ReplyDelete
  84. Hello,
    I'm married and we have no children, I live in BC. Our House I live in with my husband is only on his name (we still pay mortgage) + he has his own bank account and I have mine. He has a RRSP and life insurance - I'm beneficiary.He told me that he doesn't need a will because in case of his death everything should belong to me? Is it really so simple?

    ReplyDelete
    Replies
    1. Hi Veronika,
      It might be that simple. He is correct that on intestacy, you are entitled to his whole estate because you have no children. This presupposes that he does not have any children from previous relationships.

      The part that is not so simple is that without a will, he has not appointed an executor. There will be paperwork for you to do, particularly concerning the transfer of the house. Sure, you will have the right to own the estate without a will, but you will not be able to actually get anything unless someone is appointed as administrator.

      Basically he's right about the legal entitlement, but he's ignoring the practicalities and the fact that he's putting all the work on you.

      Lynne

      Delete
  85. Hello. This is an interesting blog. I have a unique situation here in Ontario. My father owned a home and in his will he left it for 3 of us adult children equally. The home is in a former mining town. It has very little real value because it is not only a run down home but it is in a community where houses cannot even be given away because there is no work. Many homes have been demolished. The MPAC assessment is valued at $25000 with resulting municipal taxes at our current rate of 7% being about $1700 annually. No one wants to inherit this home or property as it is a liability only yet has the unrealistic valuation that impacts the division of assets.
    If no one claims the home what happens? Is there a tax liability in perpetuity meanjng the estate is frozen until it is all cleared up. As unusual as it is in todays world it is not unusual in resource based towns. Any homes here are in tax arrears when the owners simply walked away but are being pursued for the taxes owing since even the township does not want the homes vecause thet cannot sell them. This pursuing the taxes owed by collection agencies is impacting the former owners and their estates since it is a debt that needs to be retired but in reality cannot be.
    My question is what to do?

    ReplyDelete
  86. Hello. I have lived in my husbands house for 14 years (married for 9 so far). My name is not on the title. We have a total of 5 Adult children. I paid $45,000 to pay off the mortgage. We have no will. Would I be entitled to keep the house if he died first?

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  87. we are married and we have a dependent son, my husband is divorced with four adult children. All property prior to our marriage was settled with the ex-wife, and we have purchased the home together including all contents of the home. Beneficiaries are all allocated with RRSP and life insurances, and bank accounts are joint. We live in NL and do not have a will. Are the step children entitled to any part of this new estate if my husband dies without a will.

    ReplyDelete
    Replies
    1. They may be step-children to you, but to your husband, they are biological children. So, yes, if he dies without a will, they are entitled to 2/3 of whatever is in his estate.

      Assuming you outlive your husband, your home won't be in the estate and neither will anything that is joint or designated. IN other words, most of what he owns would appear to be out of their reach. The only things that might be in his estate would be his vehicle, any $ owed to him such as a last paycheque, CPP death benefit, income tax refund, etc.

      Lynne

      Delete
  88. Hello, My father passed away in NL without a Will. He had no spouse and I am the only surviving child. Is the estate distributed between myself and my nieces and nephews? All my 8 siblings are deceased.
    I just found out that my nephew is the administrator of the estate. He applied without my knowledge. I assume a child has priority over a nephew to apply for administrator. Can i contest it?

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  89. Yes, a child has priority over a nephew to apply for Letters of Administration. He should have had you sign off before being allowed to apply. Go online to the Supreme Court of NL website, general division, and do a search under "search estate registry". To do the search you only need your father's name and date of death. Once you find it, order a copy of all documents the court has on file. This will cost $20 but you will be able to see everything that is filed. If he has sneaked something past the court then yes you certainly can contest that.

    The estate should be divided into 9 shares, one for each of your father's children. The children of a deceased child will share that child's share. For example, if you had a brother who passed leaving 2 kids, those two divide his 1/9 between them.

    Lynne

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  90. I'm hoping that this thread is still active. My husband's ex wife just won $70k in arrears in child support and the judge imputed my husband's income at double what he actually makes. I have a piece of land that we live on in Alberta that is in my name, (the down payment was a gift from one of my family members) however it was purchased after we are married. I am concerned that if he were to pass away, would half of the land be considered his estate to help pay for arrears? Or if I pass away and it were to go to him, would she be able to force him to sell it to pay the arrears? Would it help to put the land into a trust for my daughter?

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  91. Hello, we live in Alberta. Our father is battling cancer and is in the hospital. Before he was hospitalized he expressed his desire to divorce his current wife as she treats him horribly and often dissappears for days at a time on drinking and drug binges. He hasn't drawn up a will yet and has a verbal agreement with his wife as to whome will receive his possessions when he dies. His house is in his name and he has an inheritace from our grandfather who passed away. Does his wife have a right to all his assets? It is very difficult for his children and we don't want to be fighting with his wife after his passing as we are grieving. Will our father's wishes be honored if nothing is on paper?

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    Replies
    1. If it is possible for your father to do a will, he should. I know with cancer, the drugs impair capacity so it might not be possible.

      A verbal agreement regarding distribution of assets is worthless.

      Without a will, your father's estate will be distributed according to intestacy law. In Alberta this includes the spouse. An intention to divorce someone is not a divorce so she is his wife and will be entitled to a wife's share of the estate. This means that she is entitled to either $150,000 or 50% of the estate.

      In addition to that, she will also get anything that she held in joint names with him, as well as anything on which he named her as a beneficiary (such as an RRSP or life insurance policy).

      In addition, there may be a claim for a division of matrimonial assets.

      It sounds as if your family is gearing up to oppose her getting anything from the estate, but the law says without a will, she has plenty of rights to his estate. As you can see, a strong will would be helpful. If at all possible, get an experienced lawyer into the hospital to see your father rather than trying to do a will yourselves.

      Lynne

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  92. Hi There,

    I live in Ontario and my family is stuck in a bad situation. My uncle passed away last year and we cannot find his will. He has told a few people he has one but we are unable to locate it. My mother is named his next of kin on hospital records and his friend is named his POA. My uncle had 6 kids he has not seen or spoken to in over 30 years they were not even aware he was ill when he passed.Now my uncle has made it clear to friends and family he does not want his kids to have any of his estate when he passes away. His kids have not done anything about his estate since he passed and none of them has even tried to contact us.my uncle even changed his beneficiary on his life insurance from his one son to my mother to make sure they didn't get any of it. What happens from here will the kids still get his estate?

    ReplyDelete
  93. Hi there , my sister husband passed away last year, according to will he has left everything to her, she found out that his ex girlfriend had put a lien on house , my sister was going to sell. Is this allowed does she have to pay ex girlfriend

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    Replies
    1. Hi Jessica,
      If there is a lien on the house, there would have been a judgment first. This means the ex-GF would have sued the husband and won, and now is collecting on the debt. If that is the case then yes, she will have to pay her. Your sister won't be able to sell the house without paying her.

      Make sure that it's a lien and not a caveat.

      Lynne

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  94. In Ontario.. my stepmotheris entitled to my father's estate at first 200 thousand and one third of the rest. What if she was not living with my father for 15 years and was living with another man and there's evidence that they both were busted for possession of drugs? Then what?

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  95. Hello. My father passed away January 2, 2p18. He had no will, no RRSP's, no money, basically nothing. My parents rented, had no joint bank accounts or any credit cards what so ever. The tools my father has will go to my son as that is what he said and both my mother and myself acknowledge that. He does have a truck though that was is in his name only. The loan for the truck was in his name only with no co-signer. The truck has been paid off for over 2 years. My mother will not pay for a lawyer to get the truck transferred into her name. They have not had a good martiage and my mother has hated him for years. My question is this: I live in Alberta and I don't have any money
    How can I get the truck transferred into my name? My mother would rather have his truck sold (which she cannot do at this point) or have it go to the junk yard. This is the only thing I have of my Dad's as she won't give my anything. Can I do something on my own or do I need to get a lawyer??

    Thank you..

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    Replies
    1. You don't need a lawyer to transfer ownership of the truck. Your mom is the beneficiary of the estate and therefore will own the truck, so if she agrees you can have the truck, then she can transfer it to you. She would have been given a Funeral Director's Statement of Death at the funeral home. She will need that and the pink slip from the truck registration. She can make a bill of sale if the registry requires one by finding a template on a website such as LawDepot.

      Lynne

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  96. I am presently in a common-law relationship for over 10 years. My commonlaw husband is not divorced but has been separated for over 30 years. We have no children but he has children from his previous marriage. He has no will but says all would be left to me (we live in Newfoundland). Is that true? Even if he makes a will does his wife have rights?

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    Replies
    1. I don't know where he is getting his information but he is absolutely wrong. Nothing he owns will be left to you. In Newfoundland, common laws have no right of inheritance and no right to claim dependent's relief. I practice in NL and am very familiar with this.

      If you own something jointly with him, you will get that asset by right of survivorship. If he has named you as beneficiary on something e.g. life insurance policy or RRSP, you will get that.

      Otherwise, you're out in the cold. This is one of the provinces in which common laws have no protection other than the plans you make for each other and set up together.

      If he makes a will leaving his estate to you, that would work. He can't leave you anything he owns jointly with his ex. She might also still be eligible to receive his pension, if he has one.

      You need to drag him to an estate planning lawyer. Lots of people don't really like to think about this stuff but he needs to leave clear instructions so that his estate is not destroyed by legal fees.

      Lynne

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  97. Hi Lynne,
    I live in ON,married for 14 yrs and no kids. My husband purchased the house we are living in, one year prior the marriage, on his name only. When I started working he opened a joint account and used all the founds for paying household bills. When the mortgage was paid I opened another account to a different bank on my name only just to discover today that he somehow added his name on. Just wondering what should I do to be financially secure in the future? His own portfolio is four times higher then mine and I suspect he is still looking to expand it while I am trying to be independent and safe.

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  98. Hello, if my father passed away with no will ( it was revoked because he married after he had the will made up) and the house is in his name only do his adult children have the right to go to the Home if his wife has not filed for administration yet. What rights do we have. And if she is applying for administration and the Dower act will the Home title be transferred to her name? We ( his adult children) have been told we have no rights.

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    Replies
    1. Hi Confused,
      I wouldn't say you have no rights at all regarding your father's estate, but I agree that you do not have the right to go into the house. You certainly do not have the right to remove anything from the house. Remember that it is no longer your family home. It is now the matrimonial home of your father and his wife. The fact that you are his children does not automatically give you any right of ownership or of access.

      You haven't said which province you live in, which does matter. Each province has its own rules about ownership of a house when one half of a married couple passes away.

      Each province also has its own intestacy rules, meaning the rules that determine who gets what when a person dies without a will. In every province, the surviving spouse gets a share of the estate. In most provinces, the spouse gets a share before the kids (assuming you are all adults) even if the kids get nothing.

      Also remember that the house is still her home and that the items in the house are almost all going to be considered to be joint property between your father and his wife.

      Another thing that will make a difference is whether your father and his wife had a pre-nuptial agreement that talks about division of the estate upon his death.

      The fact that she has not yet applied for administration doesn't give you any right to go into the home. It just means that nobody has yet been given the legal right to dispose of your father's estate. However, if she does not apply within a reasonable time, you and your siblings are next in line for the right to apply. This means that if she refuses to apply for administration or takes so long that assets are in danger of losing their value, you have the right to consider applying yourself.

      Lynne

      Delete
  99. My brother just passed away suddenly and has no will. Our parents are deceased, so it’s just my younger brother and myself. He lived in a house owned by my younger brother and I, so all he owns is a truck. He lost his job in September, because he was missing so much work from illness. He has a pension plan that has myself and daughter listed as beneficiaries. So my question is, if we pay all his bills right away, is it really necessary for a lawyer? His bank account has very little in it. We had his income tax all done before he passed away, so that isn’t a problem.

    ReplyDelete
    Replies
    1. From what you've told me, there doesn't seem to be any need for you to hire a lawyer. It has nothing to do with paying the bills right away. It's just that you don't seem to have any legal issues to deal with.

      Lynne

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  100. Hi Lynne, In Newfoundland can next of kin on a death certificate act as administrator if someone died without a will. Family is in agreement on everything and the next of kin is handling all of the estate. Is there a need to apply legally to be administrator or will the death certificate suffice in dealing with insurance claims?

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    Replies
    1. No. The death certificate doesn't give anyone legal authority to handle assets of the deceased. Nor does it protect other family members if the next of kin steals, loses, or screws up estate assets.

      If a family member is "handling all of the estate" without a will and without Letters of Administration, he or she can only go as far as third parties will let them. Any bank, land registry, or insurance company can (and in my opinion, should) refuse to co-operate.

      I don't know what's involved in the estate, of course, but I always find it frustrating to see people carrying on with an estate with no understanding at all of what they're doing.

      Don't be surprised if someone has to apply to be the administrator. Why are you guys trying to avoid it anyway?

      Best of luck,
      Lynne

      Delete

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