What Happens If the Testator Dies Without a Will

One never knows when death will arrive, and you want to ensure that your estate is going to the right person(s)

Part 3 of the WESA outlines the distribution of an estate when a person dies without a Will, also known as dying “intestate”. According to WESA, the distribution is to the descendants of the deceased which are defined as “all lineal descendants through all generations”. Depending on the individual circumstances of the case, an intestate’s estate will be distributed as follows:

1. If an intestate has a spouse and no children or grandchildren, the estate passes to the spouse. WESA defines a spouse as someone who was married to the deceased or lived with the deceased in a marriage-like relationship for at least two years prior to the date of death;
2. If an intestate has a spouse and children or grandchildren shared with that spouse, the spouse will receive the first $300,000 of the estate, all of the matrimonial homes’ household furnishings, along with 50% of the remainder of the estate. The other 50% of the remainder will be distributed equally amongst the descendants (like children or grandchildren). In addition, the spouse has the right to purchase the marital matrimonial home and include that as part of their share in the estate;
3. If an intestate has a spouse and descendants shared with a different person, the spouse will receive the first $150,000 of the estate, all of the household furnishings, along with 50% of the remainder of the estate. The other 50% remainder of the estate will be distributed equally amongst said descendants. As well, the spouse retains the right to purchase the matrimonial home and include that as part of their share in the estate;
4. If an intestate dies leaving more than one spouse, those spouses will share the estate in proportions they agree upon or in proportions as determined by the court;
5. If an intestate dies with no spouse, the estate will be distributed equally among his/her descendants;
6. If an intestate dies with no spouses and no descendants, the estate will be distributed equally between his/her parents;
7. If an intestate dies with no spouses, descendants, or parents, the estate will be divided equally among the intestate’s parents’ descendants; and
8. If there are no intestate successors at the time of death, the estate will pass to the government.

Because a deceased dies without leaving a Will, an administrator must apply to the court for letters of administration to manage the estate. WESA sets out a hierarchy of potential administrators:

1. Intestate’s spouse or a person the spouse nominates;
2. Intestate’s child with the consent of a majority of the other children;
3. A child’s nominee that has the consent of a majority of the intestate’s children;
4. Intestate’s child without the consent of a majority of the other children;
5. An alternate intestate successor with the consent of the intestate successors who comprise a majority interest of the estate; or
6. Any other person the court considers appropriate to appoint (this includes the Public Guardian and Trustee).

In summary, it is always a good idea to have a Will regardless of how young you are. One never knows when death will arrive, and you want to ensure that your estate is going to the right person(s).

Obligation to a Spouse Under the Will