Wills and Estates Overhaul Part II - Dying Without a Will


Wills and Estates Overhaul Part II - Dying Without a Will

When someone dies without a will they are said to die intestate. Previously, the distribution of the estate of a person who died intestate was governed by the Intestate Succession Act. In February 2012, that legislation was repealed and replaced by an entire division in the Wills and Succession Act (WSA) devoted to the distribution of intestate estates. The new intestate provisions modernize this legislation and address the changing and more fluid landscape of the modern family.

So what does the new intestate legislation say?

First and foremost, it recognizes common-law relationships. An adult interdependent partner (or common-law partner) has the same rights to a share of the estate of their partner as if they were actually married. This can include same-sex partners. The Adult Interdependent Partners Act has very specific definitions and must be consulted for clarity. We will look at this act in detail in a future newsfeed. For now, we will refer to adult interdependent partners as AIPs.

Also, where spouses have been separated for in excess of two years or there is a legal separation or a written property division agreement, the WSA says that the separated spouse is deemed to have predeceased so the estate is distributed as if the deceased is not married even though at the time of death they are still married.

These new provisions do address the nature of many families in the 21st century. While someone dying without a will does not, contrary to popular belief, have their estate taken by the government, it is still distributed in a very fixed and arbitrary manner and does not address any of your particular concerns. In all our years of experience, it is a rare day indeed when a client asks us to distribute their estate using the same distribution scheme in the WSA.

For the relatively modest cost involved, we urge you to take the steps necessary to have a will in place. At Galbraith Law, in most cases, we can meet with you, take your instructions, prepare the documents and provide you with a signed will all in one visit.