Dying Intestate
Administration Upon Intestacy
Your estate plan hinges on having a well-crafted will that outlines critical instructions for after your death. A properly drafted will designates an executor (known as a liquidator in Quebec), to manage your affairs and distribute your assets according to your wishes. If you pass away without a valid and current will, these essential matters may not be addressed adequately, leading to added complexity and delays in the distribution of your estate to your heirs.
Who will look after my estate if I die without a will or if my will does not name an executor?
If you die without a will or an executor named in your will, the courts may appoint someone to manage your estate. This process can take weeks or even months, during which time no one will be able to manage or deal with your estate. This can create problems for your loved ones as bills may go unpaid and those who rely on your estate for support may not receive it in a timely manner.
In Quebec, the office of liquidator devolves of right to the heirs unless otherwise provided by testamentary provision. The heirs can designate the liquidator by majority vote and provide a mode of replacement, or the court may designate a liquidator if there is no agreement among the heirs.
What happens to my estate if I have not named my heirs?
Your appointed executor is responsible for settling all your lawful debts from your estate, which include any debts incurred during your lifetime, expenses related to your burial, cremation, funeral, and other costs associated with administering your estate. Once all the debts have been settled, your executor may then distribute the remaining estate to your heirs according to the laws of your province. If you have not designated heirs to receive all or a part of your property, your estate will be considered "intestate".
What happens to my estate if I have not named my heirs?
If you die without a valid will, your estate will be distributed according to the intestacy laws of the province or territory where you lived at the time of their death. Immediate family members of the deceased typically have the strongest right to claim your estate. In most provinces, the executor of the estate is required to allocate a specific portion of the estate to the surviving spouse, commonly known as the "spouse's preferential share." However, the amount of the preferential share varies from province to province and may not encompass the entire estate, as demonstrated by the following table.
Intestacy Distribution by Jurisdiction
Jurisdiction | Preferential Share for Spouse | Spouse and One Child | Spouse and Children |
British Columbia | $300,000 if deceased’s descendants are descendants of the deceased and spouse, otherwise $150,000. | ½ to spouse ½ to descendants (child with representation to issue) |
Alberta | N/A if descendants are also descendants of surviving spouse or adult interdependent partner, otherwise $150,000 (per Regulation) | If descendants are descendants of deceased and the spouse or adult interdependent partner, all to spouse or adult interdependent partner. Otherwise, after preferential share, remainder to child with representation to descendants. |
Saskatchewan | $100,000 (for deaths after June 22, 1990) | ½ to spouse ½ to child per stirpes | 1/3 to spouse 2/3 to children per stirpes |
Manitoba | N/A | If the issue of the deceased are also the issue of the spouse, all to the spouse. Otherwise, the greater of $50,000 and ½ of the estate to the spouse. The remainder to the issue per capita at each generation. |
Ontario | $200,000 (per Regulation) | ½ to spouse ½ to child | 1/3 to spouse 2/3 to children |
New Brunswick | N/A However, spouse is entitled to marital property | ½ to spouse (widow) ½ to child per stirpes | 1/3 to spouse (widow) 2/3 to children per stirpes |
Newfoundland and Labrador | N/A | ½ to spouse ½ to child per stirpes | 1/3 to spouse 2/3 to children per stirpes |
Nova Scotia | $50,000 | ½ to spouse ½ to child per stirpes | 1/3 to spouse 2/3 to children per stirpes |
Prince Edward Island | N/A | ½ to spouse ½ to child per stirpes (by stocks) | 1/3 to spouse 2/3 to children per stirpes (by stocks) |
Yukon | $75,000 | ½ to spouse ½ to child per stirpes | 1/3 to spouse 2/3 to children per stirpes |
Northwest Territories | $50,000 | ½ to spouse ½ to child per stirpes | 1/3 to spouse 2/3 to children per stirpes |
Nunavut | $50,000 | Share equally | 1/3 to spouse 2/3 to children |
In the event that there are family members who relied on you for support during your lifetime, they may not necessarily receive a larger portion of your estate. However, they may have the option to make a claim for a greater share of your estate through the court system. This can result in added complexity, expenses, and delays for the distribution of your estate. If you have no surviving family members, your estate will be transferred to the provincial government, also known as "escheating" to the Crown.
To minimize complications for your estate and ensure that your wishes are carried out, it is advisable to have a valid and up-to-date will. This will ensure that your estate is not subject to the intestacy laws of the province and territory, which may not align with your intentions for the distribution of your assets. It is recommended to seek the advice of a legal professional to ensure that your will is properly planned and executed.
Chernick & Associates Wealth Management Group
Richardson Wealth Limited 1055 West Hastings Street, Suite 2200
Vancouver, BC V6E 2E9 Toll Free: 1.866.640.0400
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