Intestate Succession in Canada
Understanding the Consequences of Dying Without a Last Will
Last Updated: September 18, 2024
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Key Takeaways:
- Dying intestate means passing away without a Last Will and Testament.
- Not having a Will often creates emotional and financial turmoil for your loved ones.
- Create a Will to avoid intestacy and leave instructions for your assets and property when you pass away.
Table of Contents
- What does dying intestate mean?
- What happens if I die intestate?
- What is intestate succession in Canada?
- How does intestacy affect property distribution?
- What happens when a First Nation person dies intestate?
- Who cannot inherit under intestate law?
- What happens to minor children when there is no Will?
- How long does it take to settle an intestate estate?
- How can I avoid intestacy?
Dying without a Last Will and Testament can leave your loved ones emotionally drained with a lengthy legal process, no directions, and, in some cases, no inheritance.
It’s crucial for all adults to have a valid Will and estate plan. When you don’t have a Will, the distribution of your estate follows the laws of succession. This distribution may go against what you may have wished for your family.
We’ll explain the effect on your family and estate when you don’t complete essential documents like a Will. We’ll also provide guidance and tools to help ensure your wishes are followed with care when you’re gone.
What does dying intestate mean?
When someone passes away, the legal steps loved ones have to take depend on whether the deceased had a Last Will and Testament. When you pass away without this essential document, it’s called dying intestate.
Your passing may also qualify as intestate if your Will isn’t considered to be valid. This includes if:
- It’s proven the willmaker lacked capacity when they made their Will
- The Will was not executed according to the law (e.g., no witnesses or willmaker and witnesses did not sign the Will)
- The willmaker was pressured, deceived, or coerced into signing the Will
If you already have a written Will, keeping it updated and valid according to your jurisdiction’s laws is important. Failing to do so may result in your estate being distributed according to intestate laws.
What happens if I die intestate?
If you die intestate, your loved ones must follow a lengthier, and sometimes more costly, court process to finalize your estate than if you had died with a Will.
When you have a Will and pass away, your executor will apply for a grant of probate. Through this process, the court will ensure the document is valid. Once the court confirms its validity, they’ll grant your executor probate. This means they can fulfill their duties, like overseeing the payment of your debts and distributing your estate as specified in your Will.
Intestate estates follow a lengthier court process, which includes the following steps.
Appointing an administrator
First, the court will appoint an administrator for your estate, who can also be known as an estate trustee or personal representative. This role is appointed through an application process to receive a grant of administration. Depending on your jurisdiction, this application may have a different name, such as applying for a certificate of appointment of estate trustee in Ontario.
The administrator has the authority to deal with and distribute your estate like an executor. The difference is that the administrator fulfills their duties through letters of administration while following the legislated rules of intestacy instead of a Will to distribute the estate.
An administrator can be a:
- Spouse
- Child
- Family member (e.g., parent or sibling)
- Creditor
- Public trustee
While various people can apply to be the administrator, legislation outlines the priority of applicants based on the relationship with the deceased. People with higher priority are entitled to be administrators over those with lower priority. For example, a spouse will have higher priority over a sibling.
If the person with the highest priority doesn’t want to act as your administrator, they can nominate someone else to take the role. For instance, if an elderly person passes and their spouse doesn’t feel up to administering the estate, the spouse can nominate one of their adult children to act as the administrator.
If there are two possible administrators with equal priority, the court will look to factors such as competency, desires, motivation, and effectiveness in determining an administrator. It’s important to note, this may not be the person you want handling your estate. So it’s possible an estranged family member could be responsible for your estate.
Searching for property and assets
Typically, an application for a grant of administration requires a valuation and inventory of your estate. However, the person applying for administration has no authority to act for your estate before the grant. This means they may not be able to access the information they need to create an inventory and valuation (i.e., personal property, accounts, outstanding debts, assets, etc.).
In these cases, loved ones can note that the valuation or inventory will be determined after the grant. They will then have to update the inventory and evaluate your estate after they receive the authority to act as administrator and gather all the necessary information.
Not only does this process take more time for intestate estates, but it can also drain your estate of money. If an administrator cannot locate important assets, documents, or certain beneficiaries, they may need to hire third-party assistance (e.g., a private investigator).
It’s also the administrator’s job to cancel any benefit payments and notify certain organizations of your passing, including the Canadian Revenue Agency (CRA) and any relevant provincial agencies. If the deceased was in a territory or outside of Canada, the administrator must inform the Social Insurance Number program of their death to avoid issues with fraud.
Paying debts and distributing assets
After locating all of your estate, the administrator pays your debts and taxes. In some cases, assets are frozen until creditors are fully repaid. Expenses, like your funeral, may only be covered once an administrator can access those funds.
Once your debts are paid, the administrator will distribute the remainder of your estate according to intestate succession laws under the court's supervision.
What is intestate succession in Canada?
Intestate succession, or legal succession, is the hierarchy of heirs that an administrator and court will follow when distributing an intestate estate.
Each jurisdiction has different rules for intestate succession that determine how an administrator can distribute your estate. You can find your province or territory’s laws below:
| Province or territory | Legislation |
| Alberta | Wills and Succession Act |
| British Columbia | Wills, Estates, and Succession Act |
| Manitoba | Intestate Succession Act |
| New Brunswick | Devolution of Estates Act |
| Newfoundland and Labrador | Intestate Succession Act |
| Northwest Territories | Intestate Succession Act |
| Nova Scotia | Intestate Succession Act |
| Nunavut | Intestate Succession Act |
| Ontario | Succession Law Reform Act |
| Prince Edward Island | Probate Act |
| Quebec | Civil Code of Quebec |
| Saskatchewan | Intestate Succession Act |
| Yukon | Estate Administration Act |
Although each jurisdiction has its own legally defined order of succession, these lists often follow a similar pattern:
- Spouse and biological or adoptive children
- Parents
- Descendents of parents (i.e., siblings, nieces, or nephews)
- Grandparents
- Descendents of grandparents (i.e., aunts and uncles)
Depending on your family circumstances, your estate will be divided into specific percentages. If you have a spouse and no children, typically your spouse will inherit all of your estate. However, this is not the case in every province or territory.
Generally, if you have children with your spouse, your estate will be divided between your spouse and children. In many jurisdictions, half or more of your estate will be divided amongst your children and your spouse will receive the remainder.
If you don’t have children with your spouse, some provinces will give a percentage to other family members. For example, your spouse will get two-thirds of your estate in Quebec. At the same time, your surviving parents or siblings will inherit the remaining third.
If you have no legal heirs under the law, your estate goes to the government. This process is also known as escheat. Take Alberta as an example. The Wills and Succession Act states that if there are no heirs to claim the property of an intestate estate, it will go to the government as outlined in the Unclaimed Property and Vested Property Act Part 3.
Not having a Will means you have no say on who inherits what from your estate. The court doesn’t care if you went no-contact with a certain family member. In some instances, an estranged sibling or parent may inherit.
It’s essential to document how you wish to distribute your estate in a valid Last Will and Testament.
How does intestacy affect property distribution?
Without letters of administration or a grant of probate, it's highly unlikely a bank will grant someone access to your bank account. Without this permission, only a joint owner can access someone else's account.
Property and assets that are not affected by intestate laws include:
- Joint tenancies (i.e., right of survivorship)
- RRSPs or RRIFs payable to a named beneficiary
- Trust funds
- Life insurance
Name your beneficiaries in your Will to ensure your assets go to the right people when you’re gone.
What happens when a First Nation person dies intestate?
When First Nations pass without a Will, their estate follows intestate succession laws under the Indian Act. You’ll fall under this legislation if you have Indian Status and live on a reserve or on Crown land when you pass away. If you’re Metis, Inuit, or do not reside on a reserve or on Crown land at the time of your death, your estate will follow your provincial or territorial intestate legislation.
Succession laws for First Nations are similar to those of provincial jurisdictions, with spouses and children at the top of the hierarchy. However, there are differences, such as the distribution of reserve land and the determination of an administrator.
For example, if you have reserve land in your name when you pass away, the land doesn’t go to any heirs beyond your siblings under intestate succession. Additionally, they must be a Band member to inherit the land. If they aren’t, the Crown will sell the land to someone entitled to it. The proceeds will then go to your successor according to Section 50 of the Indian Act.
If no one is to inherit, the land reverts back to the Band for their use.
The Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) handles First Nations estates in the Yukon and Northwest Territories, while Indigenous Services Canada (ISC) manages First Nations estates in all provinces. The CIRNAC or ISC will appoint an administrator for a First Nations intestate estate. If no one is appointed, the CIRNAC and ISC will act as the administrator.
According to the Canadian government, less than 9% of First Nations living on a reserve have a Will when they pass away. Making a Will is crucial to ensure your assets go to your chosen heirs and a trustworthy person handles your estate. Furthermore, it’s essential to have a valid Will following government legislation and any requirements your Band may have in place.
If you’re First Nations and need guidance on intestate succession and estate planning, please seek the advice of a lawyer.
Who cannot inherit under intestate law?
Intestate succession focuses on spouses, children, and close blood or adopted relatives. Without familial ties, people and organizations you care about won’t have an automatic right to inherit from your intestate estate. In this case, they’ll likely have to petition the court for their inheritance (which takes time and money, and petitions aren’t always successful).
Succession laws may not recognize a common-law partner. If you don’t have the proper planning or joint ownership, your partner may have difficulty inheriting from your estate. For example, Quebec doesn’t recognize common-law partners, or as they call it, defacto unions, as successors. Additionally, Nova Scotia won’t recognize a domestic partnership unless it’s registered with the Vital Statistics.
Want to learn more about how intestate laws may impact your common-law partner? Read our article: A Guide to Common-Law Unions in Canada.
Blended families will also need to keep their estate planning up to date. Step-children are not entitled to inherit anything from an intestate estate unless you adopt them. If you have step-children and wish to leave something to them from your estate, they must be beneficiaries in your Will.
Another relationship to consider is a separated spouse. Some provinces allow a separated spouse to inherit through intestate succession, while others do not. For example, Ontario has restricted separated spouses from inheriting. This exclusion applies if you have been separated for three years, have a valid Separation Agreement under the Family Law Act, or have a court order or family arbitration award regarding the settlement of your marital affairs. Additionally, you must have been living separately at the time of your death.
On the other hand, New Brunswick sees a separated spouse as a successor if you’re technically still married. However, the amount of property they inherit depends on how long you’ve been separated, as less and less property is typically considered marital property as time passes.
If you wish to leave anything for someone other than a spouse, child, or relatives, they must be beneficiaries in your Will.
What happens to minor children when there is no Will?
Your Will is for more than just your property and assets. If you have minor children, making a Will is essential to determine guardianship.
If your children have two guardians and the other guardian survives you, they’ll have full guardianship and financial responsibility for your children. However, intestate law doesn’t cover guardianship when no other guardians exist. The court will follow local family laws to determine guardianship of a minor.
Under the law, the court will do what it believes is in your children's best interest. However, writing instructions for guardianship in your Will can help ensure your children are looked after by the person you want to care for them, your children do not get separated, and prevent potential disputes.
Determining a guardian takes time. The court must assess and screen anyone who applies for guardianship. For example, British Columbia’s Family Law Act outlines the process of granting a person custody of a minor. When choosing a guardian, the court may require written approval from children 12 years old or older (unless they’re satisfied the guardian will act in the child's best interest).
If no family or loved ones can care for a minor, the government becomes their legal guardian. For instance, in British Columbia, the Public Guardian and Trustee are responsible for the children’s financial and legal affairs, and the Ministry of Children and Family Development is responsible for children’s living arrangements, health, and education.
Beyond the physical well-being of your child, there are financial concerns when you don’t leave instructions for their inheritance. Their guardian will have to manage finances for things like education and healthcare. Once your children turn 18 or 19, depending on your jurisdiction, they will receive their entire inheritance.
Your Will can outline how you wish to distribute your assets for your children’s care and future.
You may also want to consider creating a trust. This places assets and property in the care of a trustee so that your children, the beneficiaries, have set terms for its use. For example, say you have concerns about reckless spending. You can determine how much and at what age your children can access funds to help pay for their education. It’s important to note that trusts function differently in Quebec than in the rest of Canada.
Your Will is essential for protecting your children. Specify details of their inheritance and ensure their guardian overlooks their costs and care according to your wishes.
How long does it take to settle an intestate estate?
There is no definite time limit for finalizing an intestate estate. The process of determining an administrator, finding your whole estate, and identifying all your heirs takes time.
The size of your estate impacts how long it takes to finalize and distribute everything. Anyone applying to the court to inherit can delay the process even further. Sometimes, it takes years to finalize an intestate estate and for successors to receive their inheritance.
How can I avoid intestacy?
Creating a valid Last Will and Testament is the only way to avoid intestacy. This document outlines instructions for dividing your property and assets. It’ll also specify guardianship of any minor children and their inheritances.
Keeping this document updated is essential. Many Canadians who have a Will don’t have one that is up-to-date. As your life changes (e.g., marriage, divorce, birth of children, etc.), it should reflect your current situation and wishes.
Other helpful documents
Your Will is just one part of your estate plan. There are many elements of your life that you need to protect. Whether you’re leaving instructions for loved ones when you’ve passed away or are simply away from home, it’s crucial to have the following documents ready sooner rather than later:
- An End-of-Life Plan. This document outlines your wishes for a funeral, ceremony, or final farewell for your loved ones. Creating a plan can include the finer details of a ceremony you wish to have and indicate any funds you may have set aside for the occasion. Do not put these details in your Will. Families often do not read a Will until after a funeral has occurred.
- A Codicil. This legal document helps you amend, add, or remove clauses from your Will when things in your life change. Updating your Will is crucial to ensure it reflects what you currently want done with your property, assets, and the care of any children.
- A Power of Attorney allows you to appoint a legal representative if there is any reason you’re unable to make decisions or act for yourself. This power can be granted if you become incapacitated or are away from home for extended periods.
- A Living Will helps your loved ones if you become incapacitated or ill. This document outlines all your medical requests should a representative need to make those decisions on your behalf.
Keep your estate plan somewhere safe and accessible. Trust LawDepot’s Estate Vault for a secure digital space to store your estate documents.
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