Prince has been revered as one of the world’s biggest superstars having sold more than 80 million records worldwide and generating a fortune in the region of $300 – $500 million. His estate allegedly has enough unreleased music in it to carry on his legacy for more than a century and, as news of his death emerged, sales of his records spiked dramatically. Reports have surfaced to suggest that the award-winning artist was not married, had no children. When a person dies without a will, they are said to died intestate. Prince died intestate, meaning he did not have a Will.
If Prince passed away with neither a Will nor a trust, then his sister and half-siblings stand to inherit his estate. Under Minnesota law, when someone dies without a Will, and with no spouse, children or parents, then the individual’s siblings become the heirs entitled to receive the assets in the estate. Half-siblings are treated as full siblings under the state law, so Prince’s half-brothers and sisters would be on equal footing with his full sister, Tyka.
But first the question of children will have to be addressed. Without a Will or trust, Prince’s estate would potentially pass to anyone who could prove that he or she was a biological child of Prince. This could potentially open the floodgates to dozens, if not hundreds, of people coming to court asking for paternity tests to try to capitalize on Prince’s estate. In fact, someone would not even have to be a biological child of Prince to share in the inheritance. If someone could prove biological relationship as a brother, sister, or possibly even a niece or nephew of a deceased sibling of Prince, then that person could be an heir as well. Needless to say, over the next few months the world will be watching with interest to see who are Princes’ beneficiaries.
In Ontario, the laws surrounding intestacy can get complicated as well. Ontario intestacy rules are governed by the Succession Law Reform Act, RSO 1990, c. S.26. The following scenarios shed light to help better understand how intestate assets may be distributed.
Note that the definition of “issue” includes a descendant conceived before and born alive after the person’s death; (“descendance”) pursuant to s.1(1) of the Succession Law Reform Act. Essentially it is referring to children including a fetus, and children of half-blood, but not children adopted away.
Scenario 1: Deceased is survived only by a spouse, and there is no issue
Pursuant to section 44 of the Succession Law Reform Act, where a person dies intestate with property and is survived by a spouse and no issue, the spouse is entitled to the property absolutely.
Scenario 2: Deceased is survived by spouse and issue
Preferential Share
This is the amount reserved for the spouse irrespective of children and other family members (first $200k)
- Pursuant to section 45(1) of the Succession Law Reform Act, and subject to section 45(3), where a person dies intestate with property having a net value of not more than the preferential share and is survived by a spouse and issue, the spouse is entitled to property absolutely.
- Pursuant to section 45(2) of the Succession Law Reform Act, and subject to section 45(3), where a person dies intestate with property having a net value of more than preferential share and is survived by spouse and issue, the spouse is entitled to the preferential share absolutely
- Note that pursuant to section 45(3)(a) of the Succession Law Reform Act, if there is a partial intestacy and the spouse gets less than the preferential share of $200k under the will, he/she is entitled to bring that up to $200k
- However, pursuant to section 45(3)(b) of the Succession Law Reform Act, if a spouse already gets more than $200k under the will, partial intestacy won’t get him/her anything more.
Distribution Share
- The distribution share is the residue of the property value after payment to the spouse is made under section 45 of the Succession Law Reform Act. This share varies by the number of issues and is not reduced by any amount the spouse received under the Will.
(1) If there is only one child:
- Pursuant to section 46(1) of the Succession Law Reform Act, where a person dies intestate in respect of property and leaves a spouse and one child, the spouse is entitled to one-half of the residue of the property after payment under section 45
(2) If there is more than one child:
(a) Spouse gets 1/3 regardless of how many issue there are
- Pursuant to section 46(2) of the Succession Law Reform Act, where a person dies intestate in respect of property and leaves a spouse and more than one child, the spouse is entitled to one-third of residue of property regardless of the number of surviving children.
(b) If there is one surviving child and a deceased child has an issue, the spouse’s share shall be unaffected
- Pursuant to section 46(3) of the Succession Law Reform Act, where a child has died leaving issue living at date of intestate’s death, the spouse’s share shall be the same as if the child had been living at that date
(c) Remainder of residue of property will be split per capita (equally among issue)
- Pursuant to section 47(1) of the Succession Law Reform Act, and subject to section 47(2), where a person dies intestate in respect of property and leaves issue surviving him/her, property shall be distributed, subject to the rights of the spouse, if any, equally among his/her issue who are the nearest degree in which there are issue surviving
(d) If children predecease intestate, then the children of those children receive what the parent would receive if the parent was alive
- Pursuant to section 47(2) of the Succession Law Reform Act, where any issue of the degree entitled under (2) has predeceased intestate, share of such issue shall be distributed among his/her issue as in (1) and the share devolving upon any issue of that and subsequent degrees who predecease the intestate shall be similarly distributed
(e) If all of intestate’s children are dead but there are grandchildren, the estate is divided at the level of grandchildren in which they would share per capita.
Scenario 3: Deceased is survived by issue; no spouse
In this scenario the children would share the estate equally.
Scenario 4: Deceased is not survived by spouse or issue – we must refer to the table of consanguinity
This scenario is governed by section 47(3)-(9) of the Succession Law Reform Act.
- (3) If no spouse or issue is alive, then surviving parent(s) take all of the estate equally
- (4) If the parents have also died then brothers and sisters share the estate equally, with representation being permitted among the brothers’/sisters’ children
- (5) If the brothers and sisters have also died, then, nephews and nieces shall share the intestate equally, without representation – i.e. their children cannot make a claim on the estate
- (6) If nieces and nephews have also died or do not exist, then, any other next of kin of equal degree to the intestate are eligible to take the intestate per capita
- (7) Then finally, if there are no surviving family members to the deceased, the property becomes property of the Crown
Conclusion
From our analysis of Ontario’s intestacy rules it becomes clear that no matter what your family situation may be, intestacy does not take into consideration any intentions you may have for the distribution of your estate. For your peace of mind today and your family’s peace of mind tomorrow, making a Will is an easy, inexpensive solution.
Prince’s intestate status presents us with a contemporary example of the problem dying without a Will. The wishes and intent of the person who died no longer matter. With someone as iconic as Prince, that would truly be a shame.
Nevertheless, it sheds light on the importance of being up to date on all components that go into drafting a Will and protecting your family.
Rick Bickhram – for more information on Rick Bickhram, please follow this link.