Anne McFarlane – August 2017
Estate planning is a chore that most of us would rather put on the backburner indefinitely. Thinking about what will happen to your loved ones and your estate when you are gone can stir up many emotions and can seem like an unpleasant experience. While drafting a will is certainly not a fun experience, it is hugely important and can make a world of difference to your loved ones.
Many people however, do not or cannot complete a will in time which leads to a litany of questions about what will happen to the estate. Should you or a loved one not complete a will, you can expect the following general rules to apply to the estate.
Dying without a will, or dying “intestate”, results in the distribution of your estate being governed by the Intestate Succession Act (the “ISA”). This legislation contemplates a series of “what ifs” about your circumstances and dictates how your estate will be distributed based on your personal and family circumstances. These include if you have a spouse (a married spouse or Registered Domestic Partner), if you have children or if you have surviving parents and siblings, etc.
Some general rules regarding the distribution of an estate upon intestacy are as follows:
- If you have a spouse and no children, your spouse will receive the entirety of your estate.
- If you have a spouse and children:
- Your spouse will either receive 100% of the estate (if your estate is worth less than $50,000); or
- Your spouse will receive the principal residence or $50,000 (generally which ever is worth more).
- If you have only one child, your spouse and child will each receive 50% of the remaining value of the estate.
- If you have more than one child, your spouse will receive 1/3 of the value of the estate and the remainder will be shared equally among your children.
- If you have no spouse and no children, your parents (or the survivor of them) will receive the entirety of your estate.
As you can see, the more complex the family circumstances the more complex the distribution of the estate. For example, there are specific rules for how an estate is distributed if your adult child predeceases you, leaving grandchildren or, if you have no spouse or children and your parents have predeceased you. There are also provisions for unborn children.
There are additional concerns when minor children receive funds through an intestacy. As there has been no guardian and trustee appointed under a will, the Nova Scotia Guardianship Act will step in. This legislation grants the Court the authority to appoint a guardian (to provide ongoing care for your children) and a guardian of property (to manage your child’s portion of the estate). However, if you and/or the other parent have not appointed a guardian and trustee under a will, the Court may determine someone other than your “first pick” is best suited to care for your children.
If you have designated beneficiaries on certain property (life insurance policies, investments, TFSAs, RRSPs, etc.), this property will pass to the beneficiaries outside of the estate. However, if you hold these types of accounts and designated beneficiaries have not been selected, these values will be added to the value of the estate and distributed according to the ISA.
More often than not, my clients are quite surprised to find out what happens to their estate should they put off this necessary task and would be unhappy with the end result. Executing a will is the only way to ensure your belongings are distributed according to your wishes and your minor children’s estate is properly managed following your passing.
Please contact the Wills and Estates team at MDW Law today to discuss your estate planning needs.