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When someone dies without leaving a valid will (dying intestate), it’s up to the courts to determine how the estate should be distributed. Part 3 of the Wills, Estates and Succession Act (WESA) outlines what exactly is to be done when someone dies intestate. While the distribution of the estate can be straightforward in some cases, it can be unclear or complicated in others. In this blog, we’ll highlight some of the most common family situations and how intestacy laws, as described in WESA, will operate to distribute the estate.
The entirety of the estate will be distributed to the spouse.
The spouse will receive all the household furnishings which are the “personal property usually associated with the enjoyment by the spouses of the spousal home.” The spouse will also receive a preferential share in the intestate estate of the first $300,000. If the intestate estate is valued less than $300,000, the spouse will receive the entirety of the intestate estate – the children will not receive anything. If it’s valued above $300,000, the spouse additionally receives half of the excess value and the children receive the other half split equally between each child.
As an example, if the intestate estate is valued at $1,300,000, the spouse would receive the household furnishings, the $300,000 preferential share and another $500,000 as half of the remainder of $1,000,000. In total, the spouse receives $800,000. The children would equally split the other $500,000.
In this scenario, the distribution is the same as above except the intestate estate preferential share is only $150,000. Looking at the same example, the spouse would receive the household furnishings, the $150,000 preferential share and $575,000 as half of the remainder of $1,150,000. In total, the spouse receives $725,000. The children would equally split the other $575,000. In this case, the children receive more of the intestate estate while the spouse receives less.
The entirety of the estate will be distributed to the children, equally split between them.
The entirety of the estate will be distributed to the testator’s parents. If both parents are deceased, the estate will go to the parent’s children (the testator’s brothers or sisters). If there are no brothers, sisters, or parents alive, the estate will be given to the grandparents. If there are no grandparents alive, it will be given to the grandparent’s descendants. Further, it can be distributed to great-grandparents and their descendants. If there are no relatives that can be identified to be entitled to the estate, the government will receive the assets of estate.
If there are multiple people of the same level of priority, the estate will be equally distributed to them. As an example, if someone dies intestate without any parents, but 2 surviving brothers and 1 surviving sister, each sibling will receive a 1/3 share of the estate.
While the procedures the courts will go through in determining how to distribute an intestate estate can be clear in specific circumstances, it’s always best to write a valid will. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your estate is distributed exactly as you want upon your passing.