What happens to my real estate if I die without a will?
As experienced Northern real estate lawyers, we know that real estate is the largest and most important asset that most people will own. Whether the property is a house, townhouse, cottage, mobile home, or condominium, it can serve as shelter, security, and roots to the community during your lifetime, and represent a valuable part of your estate on your death. Given the significance of such property, it is worthwhile to ask yourself, “What happens to my real estate if I die without a will?” Read on for the answer to that question from our Yellowknife wills and estate planning lawyers.
Northwest Territories lawyers on real estate and dying without a will
If you die without a will, all of the property that forms your estate is distributed to your surviving relatives in accordance with the rules of inheritance set out in the Northwest Territories’ Intestate Succession Act. “Estate” is defined broadly in the law to include both real property (e.g. land and buildings) and personal property. So, if a piece of real property forms part of your estate, the rules of intestacy apply, and the value of the property, less any charges or mortgages, will be distributed in specified shares in accordance with the priority rules. For example, if you have a spouse but no children, your spouse gets your whole estate, including any real property that is included in your estate. If you have a spouse and children but the net value of your estate including real property does not exceed $100,000, your spouse will inherit your entire estate to the exclusion of your children, even if they are adults and even if it is your second marriage. This is because NWT succession law gives a surviving spouse a preferential share of the first $100,000 of an estate if their spouse dies without a will.
Surviving spouse’s entitlement if real property is your “home”
There is a special rule that applies to real property if it was your home when you died and you are survived by a spouse. Northwest Territories’ Intestate Succession Act defines a "home" as a dwelling that is owned and occupied as the principal residence of the deceased at the date of his or her death, and it includes the land and all household goods and furnishings of the dwelling. If your estate includes a piece of property that meets the definition of a “home”, your spouse can elect to receive their preferential share or keep the home itself. Bear in mind that for these purposes, the value of the home is the fair market value less any charges or mortgages attaching to it. So for example, if the net value of your estate exceeds $100,000 and includes a home, your spouse can elect to receive: (a) $100,000 (b) the home itself, if the home is valued at more than $100,000, or (c) the home as part of their $100,000 preferential share, where the home is valued at less than $100,000. If the value of your estate including the home exceeds $100,000, the amount beyond the initial $100,000 (known as the “residue”) is divided equally between your spouse and child if you have one child. If you have a spouse and more than one child, one-third of the residue goes to your spouse and the other 2/3 is divided equally among your children.
Be aware that real estate may pass outside of your estate
If you die without a will, the intestacy rules discussed above only apply to property that forms part of your estate. It may be that real property you own at the time of your death does not form part of your estate, but instead passes outside of your estate. The primary example of this is where you own real estate as a joint tenant, which is typical for a home owned by both spouses. Property held in joint tenancy does not form part of the deceased’s estate because the joint tenant receives the property by right of survivorship on the death of the other joint tenant. In other words, ownership goes directly to the surviving owner listed on the title to the property. The right of survivorship applies to any real estate owned by joint tenants and operates whether you die with or without a will.
Discuss options for your real estate with our trusted Northwest Territories lawyers
Having a valid will is a simple way to ensure that your intentions are carried out and your loved ones are taken care of. In addition to having a valid will, there are other estate planning options that can be used to deal with real estate, such as transferring property into joint tenancy with an intended beneficiary, gifting a life estate (which gives a person referred to as a “life tenant” the right to live in the property for a specified period of time, then passes the property to a third person after the life tenancy ends), or establishing trusts. Through the process of wills and estate planning, Yellowknife-based lawyers at Dragon Toner Law Office can advise you on the pros and cons of each option and help you decide what fits best in your estate plan. If you would like more information about our wills and estate planning services, please call us at 867-873-6000 or toll-free at 1-888-558-0668 at our offices in Yellowknife. Wills and estate planning is simpler than you think – get started by contacting our Northwestern Territories lawyers today.