Dying Without a Will

The subject of Last Will and Testament is of particular interest to me since I have personally experienced the consequences of having to deal with this situation when my younger brother passed away a few years ago.  Perhaps this story will encourage those who don’t have a will to prepare one and prevent a lot of anguish.

He and I had been estranged for a few years and he lived in Northern Ontario in a community that was about a six hour drive from my home so there were some logistics issues that complicated matters.  A couple of his friends took care of the preliminary matters of having a funeral home collect his remains from the hospital, plan for cremation and so on and I confirmed the arrangements.

Winter was setting in and to make matters even more difficult I was recovering from recent open heart surgery that resulted in complications that kept me in the hospital for nearly a month.  Recovery was slow and I was in no condition to travel so at least for the first few weeks after his death any duties that were required in his residence were relegated to his friends or postponed.

The first issue that you must come to grips with is that there is nobody in charge.  Strictly speaking, there is no one who has the authority to enter the house even if it is to search for a will or evidence that one exists.  His friends took it upon themselves to ignore that complication and search the place, and this probably happened before his death was even pronounced.

Although as his only living sibling, I was the obvious person from whom to take direction, nevertheless I repeatedly reminded them that I had no authority over any aspect of the estate, whatever it may be.  (His spouse passed away exactly two months before him; our parents are deceased, and there were no dependants.)

So we have an unoccupied home in early winter, no assurance that the heating system will even operate, no knowledge if there is even insurance in place to cover it in the event of a loss, a refrigerator and freezer containing food and other perishables, and no knowledge of whatever else might be in the house that would be damaged if frozen.  When his friends made the decision to clear the contents of the place and remove them to their own residence I still had no authority to object, and nor would I under the circumstances.

I asked them to set aside every paper that they found in the home and finally a few weeks later I felt that I would be able to manage the trek to see firsthand what we were dealing with.   I visited the home and discovered that nearly everything had been removed laving a few pieces of furniture, some items in the kitchen cabinets and miscellaneous trivial items.

Upon returning home I sifted through the papers and records that they provided.  His friends claimed that they found no will and after thoroughly looking in every envelope and piece of paper I found none either.

To mitigate damages to what appeared to be the only asset of any significant value and at my own expense I hired a plumber and authorized him to enter the premises and winterize the water and sewage systems in case there was a power failure.  I also contacted the company that had been supplying furnace oil and asked them to continue to ensure that the oil tank was topped up.

To backtrack just a bit, if you die without a will, and nobody comes forward to be named Estate Trustee, the government will appoint one for you.  As with an executor in a will, this person will search through your personal effects for any important papers or documents such as insurance policies, make a detailed inventory of your assets, pay any debts, liquidate or manage your assets, apply for any death benefits, and so on.  Then finally deal with whatever remains.

The Estate Trustee may hire lawyers, accountants, bookkeepers and anyone else they desire to fulfill their role, and of course they are entitled to a fee for their services.  Unless you have a sizeable estate there may not be much left to distribute.  So what happens to whatever remains?  It is distributed to relatives according to the laws of whatever the jurisdiction of your former residence.  Typically, the spouse would inherit first, then children, grandchildren, parents, then nieces and nephews, and so on.  If there are no blood relatives, whatever is leftover will probably be claimed by the government.  There is an excellent reason to consult a lawyer and make a will.

In Ontario, a logical assumption might be that if there were any assets in the estate, there wouldn’t be much left to be distributed to any heirs so the alternative is to apply to the Superior Court to be appointed the Estate Trustee. This process may take several months to be reviewed and approved.  Or not.

There are many obstacles to submitting the application, the largest being that a cheque for the probate fees that would be applicable to the estate is required to be submitted with the application.

Here is where you encounter the hurdles.  Without the certificate the bank will not disclose if there is a savings or chequing account let alone sharing if there are any balances in the accounts.  Of course they will not disclose if there is a mortgage on the property or the balance remaining or if the mortgage was insured.  Financial institutions will not tell you if there are any investments or retirement plans.  In short, you cannot retrieve any useful information to help you establish the value of the estate and the probate fees until a few months have passed and the certificate appointing the trustee arrives in the mail.

Fortunately for me the local postmistress who understood my predicament was willing overlook my lack of authority and bend the rules slightly to help me in a small way by forwarding any mail to me.

Although some real estate agents might be helpful in coming up with an approximate value of the property, you cannot sell the property or even list it for sale.

You can of course keep paying the bills for electricity, heating oil, insurance, snow removal and more.

There is a lot more to the story but I hope that my experience will provide to you a glimpse of the mess that dying without a will leaves behind.

Finally  as a corollary to the story several weeks after I received the authority to become the estate trustee a will was discovered among the possessions that were kept by his friends.  In Ontario as I discovered, a will becomes null and void if the person was married after it was executed.  This was the case in my brother’s affairs so the discovery did not change anything but I mention it anyway to illustrate that there are always potential surprises so one needs to cautious and wary.

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