Are my husband's sons from a first marriage entitled to part of my home?

Are my husband’s sons entitled to part of my home?

He died without a will and they are adults now

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Q: My husband passed two years ago and he had 3 sons who we had no contact with the 12 years that we were married. The sons are all in their 20s. I was the administrator of our assets. We had no will as we were only 47-years-old. I put a notice in the newspaper asking for anyone who was owed money by my husband to come forth in 30 days. Does this apply to my deceased husband’s 3 sons as well? I have sold our family home and built a new home since his death. Are the 3 sons entitled to any part of my new home? My husband and I had one daughter who is now 18 years of age.

—Paula

A: Paula, wills prevent disasters for blended families. Your husband died without a will two years ago. You had to apply to the court to be appointed as his administrator. You must pay his creditors before you distribute his estate assets, according to your province’s intestate laws.

Each province has different laws that dictate how your spouse’s estate is distributed. Provincial rules may not reflect your spouse’s wishes or needs. In Ontario, married spouses receive the first $200,000 of his estate. You also share the rest of his estate with all his children. Your minor daughter, as a dependant, may also have claims for support. Sharing a spouse’s estate is complicated when there is no will. This is especially complex in blended families without wills.

Your spouse may have wanted you to inherit his entire estate to raise your daughter. Your spouse may have wanted his sons from his prior relationship to receive minor gifts. No one will ever know what his plans were. His wishes are not legally enforceable without a valid will.

There are usually conflicting claims in any estate when persons die without wills. Often judges must resolve all competing claims. This can force blended families into starting legal proceedings.

In all cases, notice to estate creditors is necessary. A notice to estate creditors is published online or in newspapers. The appropriate wording is required for notices. Notice to creditors does not extinguish any valid claims against your husband’s estate. Also, the notice does not cancel your late husband’s valid debts. You are still responsible to pay all his known estate debts with his funds (but not with your own money). Notice does not wipe out claims you are aware of or do not want to pay from his estate.

By publishing notice, administrators or executors prove they are taking reasonable care to identify “unknown” debts. Notice can then protect them from any personal liability to pay “unknown” creditors.

You did not mention income taxes. Taxes are usually the largest debt in every estate. Notice will not satisfy your personal liability to pay his income taxes from his estate funds only.

Remember, you are wearing multiple hats as estate administrator, beneficiary and parent of your minor daughter when your husband passed. The law still requires you to pay all creditors before you distribute his estate.

Is it safe to close his estate? Do your spouse’s estranged sons have entitlements? That will require you to obtain legal advice. His sons may be financially independent, but they may have other moral or estate claims based on promises you know nothing about.

My reply is no substitute for proper legal advice. You should obtain specific advice from your estate lawyer to reassure you.

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Ed Olkovich is a Toronto Estate Lawyer and Certified Specialist in Estates and Trusts with Edward Olkovich Law Professional Corp.

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