canada divorce wills ontario mortgage
How to proceed when there is no will/last testament?
<p><strong>The Situation:</strong></p>

<p>My best friend's mother (Grace) passed away on Monday. Grace told her sister Hope and her son that she had a will. We cannot locate it (at home, not filed with lawyer or the city).</p>

<p>We found investment papers stating her brother to be the beneficiary (2016). We found retirement papers stating 50/50 to her brother and her as beneficiaries (2017).</p>

<p>If there is no will to be found, how does the family proceed? </p>

<p>With respect to assets with a beneficiary designation, you contact the company involved and ask what paperwork they need to make a distribution happen. Usually, it is a death certificate and a company specific form that establishes the domicile of the decedent and the identity of the claimant. Often these forms need a "guaranteed signature" which is a bank backed alternative to a notarization.</p>

<p>If there is any real estate or there are significant assets, an intestate probate estate is opened and the next of kin with priority under the relevant statute is appointed as executor and distributes the remaining property in accordance with the laws of intestate succession.</p>

<p>If there is only tangible personal property and a small amount of financial assets that have no beneficiary or joint owner, it is sometimes possible to collect and distribute those assets by affidavit or in a streamlined small estates procedure.</p>

<p>Either of the latter two situations really call for a lawyer to be involved.</p>

<p>Estate law in Canada is a provincial matter so we really need to know what province this is happening in.</p>

<p>If you are in Ontario, the law is the same as in New Jersey, USA and Levitz v. Hillel Lodge Long Term Care Foundation is the persuasive precedent. The (rebuttable) presumption is that there is no will i.e. the deceased died <a href="https://www.google.com.au/search?q=Dictionary#dobs=intestate" rel="nofollow noreferrer">intestate</a>. To overcome the presumption, a plaintiff needs to prove:</p>

<ul>
<li>the will was duly executed, </li>
<li>The deceased had it in her possession up
to the date of her death,</li>
<li>The contents of the will, and </li>
<li>Rebut the
legal presumption the will was destroyed by producing enough evidence
to prove the testator didn’t intend to destroy or revoke the will.</li>
</ul>

<p>All provinces have laws that deal with intestacy. Ontario's are summarized <a href="https://www.wagnersidlofsky.com/intestacy-in-ontario/" rel="nofollow noreferrer">here</a>. </p>
