Category Archives: Intestacy

Intestacy and Young Families

We’ve all been there: young, vibrant, decorating our first house, having a first child, thinking about writing our last will and testament. Not so much? You aren’t alone!

The Fraser Valley is home to a growing number of young families. In my conveyancing practice I meet young parents excitedly planning for their futures with an investment in real estate. To say the least, they are not keen on thinking about their premature demise.

Knowing the focus of my practice, clients often bashfully admit they have yet to draft a will. So I immediately ask what they think would happen if they died unexpectedly. Married clients tell me, time and again, they believe their spouse would get everything. Not even close! Without a will, your assets must be distributed according to a legislative formula, which likely does not reflect your own preferences.

The law in this area is changing. For the past several decades, the law has provided for the following distribution:

First $65,000 of your assets to Spouse

1/3 remainder of your assets to Spouse

2/3 remainder of your assets divided equally among Children

It is expected that the Wills, Estates and Succession Act will become effective in the early months of 2013. After that, intestate distribution will depend upon whether or not your spouse is the natural parent of all of your children. If your spouse is the natural parent of all of your children the first $300,000 of your estate assets will go to your spouse. If your spouse is NOT the natural parent of all of your children, the first $150,000 of your estate assets will go to your spouse.

Of course it is true that many assets are held jointly with a right of survivorship to the surviving spouse, but this is not always the case. If you or your spouse chose to go on title to your major assets alone to achieve a first time home-buyer’s exemption or to avoid effects from a poor credit history, your spouse may not have access to the assets he/she needs to raise your children.

Under the current law, your spouse would enjoy the right to remain in your marital home (subject to financial considerations). Under the WESA, this right expires after 180 days.

By far the biggest risk intestate parents run though, is that their children will not be placed with the guardian they would have chosen.

 

Who Gets the Children?

We have all heard the story of the shoemaker’s children – they never have proper shoes! This adage holds true in many fields, but it does not plague the families of estate planners. Estate lawyers have wills, because the risks of dying intestate (without a will) are simply too high.

My husband and I have three girls, all under the age of 10. Like most children, our girls are full of personality! So much personality that our parents probably wouldn’t have the energy to keep up with them on a full-time basis. We each have one sibling; one is newly married and just starting out, while the other is well-established but has a large family of his own. Neither of our siblings lives locally in the Maple Ridge – Mission area.

If we didn’t have wills, which of course we do, how would our two grieving families determine what living arrangements we would want set up for our girls? Would an answer simply be obvious to them? Would they work together to obtain a custody order from the courts, or would they find themselves at cross purposes?

Without a will, conflict can arise even between the most well-meaning of family members. I have worked with families who feel they have to pursue custody in honour of their deceased child/sibling. I have worked with families who feel the other family wouldn’t continue to allow access over time, or who do not share religious and cultural backgrounds with other potential guardians.

They say it takes a village to raise a child, but all too often our ‘villagers’ don’t see eye to eye. Even if there were no other reasons (which there are), this should be enough to convince most parents of the need to draft a will.