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.