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Your assets (less your liabilities) make up your estate. They include legal rights and entitlements (such as the current value of a defined benefit pension, unpaid vacation time, and so on). However, they also include your legal obligations (such as the guardianship of a minor child).

Transferring Assets

On your death, your assets must be transferred to others. This can happen by one of three methods:

  1. Outside of the will
  2. Dying Intestate
  3. Through a will

These will be discussed in greater length in the sections that follow.

1. Outside of the will

There are certain assets that will transfer automatically, regardless of whether a will is in place or not, or is being contested. Examples of such assets would include:

  • Assets held in joint names, with right of survivorship, transfer to the surviving joint owner at death.
  • Assets held in an account with a named beneficiary may be automatically transferred at death (such as RRSPs, TFSAs, and so on).
  • Life insurance proceeds pass directly to a designated beneficiary.

2. Dying Intestate

If a person should die without a valid will, provincial law prescribes their affairs be handled in a set way. Usually, this means that the provincial “public trustee” takes control of all assets of the deceased.

The trustee will then make applications and recommendations to the court, as required, to address such issues as guardianship for any minor children. The public trustee also holds assets in trust for minor children until the age of majority.

Minor children may not hold property directly. The public trustee may step in and hold the assets in trust until a minor child reaches the age of majority (age 18, or 19 in some provinces).

3. Through a will

If the deceased has a valid will, assets that don’t pass “outside of the estate” pass through it. A will addresses:

  • Who will get either a specific asset or share of the residual assets;
  • What the specific asset or share is (for example, 1/3 of the residual);
  • When it will be transferred (immediately or held in trust and transferred over time); and/or,
  • Legal guardians, if the deceased has minor children.

There may be no assets to transfer via the will if all assets transfer outside of it; a surviving spouse may receive all of the estate assets outside of the estate.

Depending on the type of asset, the executor may need to probate the will, proving the will is valid and authorizing the executor to act.

Notarial wills in Quebec do not require probate.