Succession (Wills)

Succession (Wills)

When a person dies, that person's property or its value is transferred to the persons entitled to it after payment of any outstanding debts and liabilities; this process is described as succession. Succession is determined in either of two ways: one, by the person in his or her lifetime signing a written document (a "will"); or two, when there is no valid will, by automatic application of the law of the province or territory of residence of the now deceased person. In the latter case, these laws unilaterally determine the persons entitled to share in the deceased's property, and the proportion of the property to which each person is entitled.

Succession With a Will

An individual who has signed a valid will is setting out detailed instructions for disposing of or distributing property after death. A will gives a person the opportunity to ensure that his or her intentions are fulfilled after death (eg, providing for family members, distributing property or its proceeds in the most appropriate way, perhaps tax savings or deferral). The will also permits a person to choose and name an executor, sometimes called an estate trustee, who is responsible for carrying out all the provisions of the will, and whose authority arises as soon as the person dies.

The form and manner of signing of the will are as important as its substance. Each province or territory has passed legislation which prescribes how a will should be signed; for example, where the signature should appear and if witnesses are required, and how many must be present.

Succession Without a Will

If a person dies without leaving a valid will, the laws relating to succession mentioned above will apply immediately to determine who will be the heirs to the deceased's property and the proportion of each heir's share.

For example, in Ontario (since April 1995) if an individual dies without a will, and is survived by a legal spouse and more than one child, the spouse succeeds to the first $200 000 of the deceased's net property and one-third of any surplus; the children receive the remaining two-thirds of the surplus in equal shares. If that same person died without a spouse or issue (not only children, but also their descendants) but is survived by parents, the parents would succeed to all the net property equally; if only one parent survives, all net property would pass to the surviving parent. A court application must be made to determine who will administer and manage the deceased person's property before distribution can be made.

Administration of the estate of an individual who has died without a will is more difficult and succession to the deceased's property determined automatically by legislation often bears no resemblance to the deceased's actual wishes.