Dying Without A Will

James Schofield - Mar 12, 2020
Drawing up a will is a time-consuming and complicated process, but that's still more straightforward than dying without one. Here's why.

A will is a legal document that coordinates the distribution of your assets after death and can appoint guardians for minor children.

Getting your Will drawn up can require a lot of thought and consideration, consultation with multiple family members, and an appointment with a lawyer. While it can be a time-consuming process, having a Will is of great importance in order to ensure that your Estate is distributed according to your wishes.

So, what if I die without a Will?

When an individual dies without a Will, the individual is deemed to die “intestate.” When this occurs, government legislation defines how the deceased’s assets are to be distributed. In many cases, the deceased’s married spouse (if any) is entitled to a defined share of the deceased’s Estate – often referred to as the “preferential share”. Amounts in excess of the preferential share are normally divided between the spouse and children.


Spouse and one child

Spouse and children


First $200,000 to spouse; balance split equally.

First $200,000 to spouse; 1/3 of the balance to spouse; 2/3 of the balance to children






Here are some of the top reasons to have a Will:

  1. Ensure your final wishes are honored:
    If you don’t have a Will, you don’t have a say.  Should you die without a Will, your Estate will be divided according to a provincial government scheme, which is not likely what you would have wanted. For instance, some schemes do not recognize a common-law spouse, while none of the provinces consider stepchildren. 

  2. Avoid lengthy and costly probate:
    Probate is a court application which is time-consuming and costly. A well-drafted Will can reduce the time and money associated with the probate process.

  3. Minimize Taxes:
    A will provides opportunities to reduce taxes paid by your estate, which will increase your net assets left to your family members.

  4. Care for your minor children:
    If you have minor children, a Will is crucial to state who you wish to appoint as a guardian for them. A Will also allows you to place conditions on the use of an inheritance and when a beneficiary may receive the funds.

Who takes care of your Estate after you die?

When a person dies without a Will, someone, usually a close relative, must apply to the court to be appointed as the estate trustee without a Will. If there is a dispute as to who should be appointed, the matter must be referred to a judge to determine the most appropriate person to act as an estate trustee. A Will is your opportunity to name the person or persons who will administer your Estate, assisting your loved ones through a difficult time.

How do I write a Will?

Some people prefer to hire a lawyer who will ask questions and then draft a last Will and testament form for you to sign. This may be best if you have a complicated estate or complex wishes that you want to be addressed. For simpler Wills, there are online services that can be used to write your own Will from scratch.


For more information for Ontario residents, please click the attached link: