The world has been mourning the loss of legendary soul and gospel singer Aretha Franklin after her death on August 16, 2018. While fans and those in the entertainment world pay their respects, a potential estate battle is brewing after it has been discovered that Franklin had neither a will nor a trust in place when she passed away.

The Implication for Franklin’s Estate and Family

During her lifetime, Franklin was notoriously private and skeptical of the press. Now, the lack of any estate plan means that Franklin’s finances will become public.

According to CBS News, Franklin’s entertainment lawyer repeatedly asked her to think about the future and put together a trust while she was alive, noting that “it would have expedited things and kept them out of probate, and kept things private.” He added that, at this point, it is impossible to place a dollar value on Franklin’s song catalogue, something that should have been managed for copyright issues as part of a broader estate plan while the singer was still alive. Franklin did retain ownership over her original compositions.

In Michigan, where Franklin lived, the assets of a deceased person who was unmarried and died intestate (i.e. without a will) are divided equally among children. However, others (including extended family members or creditors) could contest the estate.

Sabrina Owens (Franklin’s niece) has applied to be the personal representative of the estate. Her four sons filed a court document earlier this week listing themselves as interested parties to the estate.

Franklin’s decision not to leave a will or other plan, could result in a protracted and emotional court battle over her assets by family members.

Intestacy in Canada

In Ontario, Part II of the Succession Law Reform Act sets out how that person’s estate is to be distributed where they die without a will.

The SLRA provides as follows:

If you have a spouse, but no children

Your spouse will inherit everything. This does not apply to common law spouses, who have different remedies available to them when it comes to estates.

If you have a spouse and children

Your spouse receives what is known as a “preferential share” (up to $200,000 in assets).  Any additional assets left after the preferential share (i.e the “residue”) will be divided between the spouse and the children. If you have one child, your spouse and the child split the residue. If you have more than one child, your spouse receives one-third of the residue, and the rest is divided equally between children.

If you have children, but no spouse

Your children each inherit an equal portion of your estate. If any of your children predecease you their children (if any) will inherit their portion.

If you have no spouse and no children

Your parents will inherit your full estate.

If you have no spouse, no children, and no parents

Your siblings (or their children if any of your siblings have predeceased you) will each inherit an equal portion of your estate.

If you have no spouse, no children, no parents, and no siblings

Your living next of kin will inherit an equal portion of your estate (this can be more distant relatives including cousins, great nieces or nephews, great aunts and uncles, etc.)

If you have no living next of kin

Your estate will go to the government of Ontario.

The Importance of Having a Will

Dying intestate may lead to a long, drawn out process of dividing your estate. There may be disputes as to what you wished to do with your home, your cottage, or any other assets. This has the potential to get extremely contentious, result in lengthy and expensive litigation, and has been known to tear families apart.

Having a will allows for a speedier distribution of your estate, mitigates any potential legal risks, and allows division of property and other assets to proceed as you would have wished with much less conflict (though even if you have a will some disputes including will challenges or trustee/executor challenges may be inevitable).

At Financial Litigation, we have many years of experience advising clients on wills and estate matters, including on estate litigation.

We represent:

  • beneficiaries and trustees that are seeking to have an executor or trustee removed, as well as advising individuals facing challenges or removal;
  • clients seeking to challenge a will in court. We have experience contesting the validity of wills and estate plans on the grounds of improper legal form, undue influence, or lack of capacity;
  • executors or beneficiaries that are defending will challenges. We can advise executors, estate trustees, and other representatives where a will is being contested.

Our experience handling commercial and financial litigation means we are uniquely placed to manage complex matters involving high-value estates. Call 416-769-4107 x1 or contact us online to schedule an appointment.