BY VALERIE DYE
The main reason for having a will is to ensure that your estate is distributed in accordance with your wishes. Contrary to popular belief the Government does not automatically get all your assets if you do not have a will. The Succession Law Reform Act outlines special rules for the distribution of your assets in the absence of a will. These rules are called ‘Rules of intestacy’. A person dying without a will is said to have died intestate.
Where a person dies intestate and only has a spouse and no children, the spouse is entitled to the entire estate. It is important to note that ‘spouse’ refers only to married spouse and not spouse in a common law relationship.
Where the deceased leaves a spouse and children the spouse will become entitled to what is referred to as a ‘preferential share’ of the deceased’s estate. Currently the preferential share is set at $200,000.00. This means that if the deceased’s estate is valued at less than $200,000 the spouse will get the entire estate and the children will receive nothing. If the estate is valued at more than $200,000 the spouse will receive the $200,000 in value and the remaining value of the estate is divided among the spouse and children in the following manner:
If the deceased leaves a spouse and one child the remaining value of the estate after the spouse obtains the preferential share is divided equally between the spouse and that child. For instance, if the deceased left property and cash with a total value of $600,000, the spouse receives a preferential share of $200,000 plus half of the remaining $400,000. The spouse will receive a total of $400,000 and the child will receive $200,000.
If the deceased dies intestate leaving a spouse and more than one child the spouse is entitled to the preferential share and one third of the remaining balance of the estate. In the example given above the spouse will receive the preferential share of $200,000 plus $133,000. The remaining $267,000 will be divided among the children.
In many cases a deceased may have a will but some of his or her property is not mentioned in the will. In that case there is a partial intestacy. According to section 45 (3) of the Succession Law Reform Act where the deceased died testate but dies intestate as to some property and where under the will the spouse has received no gift or gift valued at less than the preferential share the spouse is entitled to the balance of the preferential share from the property not included in the will.
Where a deceased has no spouse or children the parents of the deceased will receive the value of the entire estate. Where the deceased leaves only siblings and no parents, the siblings will be entitled to the estate equally. If one or more sibling has died leaving surviving children those children will be entitled to the share which the deceased sibling would have received.
It is only in cases where there are no immediate relatives or next of kin that the estate devolves to the Crown.
It is important to reiterate that a common law spouse is not viewed as a spouse for the purpose of intestacy.