No Will, No Control

Dying without a will is dying intestate, which means that the distribution of your assets becomes the responsibility of the courts. Provincial governments dictate what happens to your assets if you die intestate. Certain provinces have enacted, or are in the process of enacting change to their estate laws, which will also impact intestacy legislation.

It is important to get legal advice on estate issues. Better yet, put a will in place and avoid these problems altogether.

Canada (Excluding Quebec)

In most of Canada (excluding Quebec), if you die without a will, the net proceeds of the estate (after all outstanding taxes and debts, funeral expenses and estate fees are paid) will be distributed as follows. If you have:

  • A spouse only: everything will go to the spouse.
  • A child or children only: everything will go to the child/children and, for most provinces, if a child has died and left grandchildren of the deceased, the grandchildren may receive their parents’ share.
  • A spouse and children: who gets the net proceeds varies by province. If the province grants a surviving spouse an initial share (such as, a percentage or specific dollar amount [$50,000 to $200,000]), the rest is divided between the spouse and children.
    • The distribution formula is set by the province.
    • In some provinces, the surviving spouse receives all the assets (only if any children belong to the surviving spouse).
  • No spouse and no children: net proceeds go to the closest next of kin in a predetermined order:
    • Closest relatives are usually first in line. If none are surviving, then other family members get the proceeds, as determined by each province.
    • If there are no identified family members, the proceeds go to the government; however, there may still be the ability for family members to make claims if the province allows.

In Quebec

 

 

 

 

 

Spouse Only

Spouse, Relative(s), but
No Children

Child or Children Only

Spouse and One Child

Spouse and Children

No Spouse or Children

Quebec

All to spouse

2/3 to spouse

1/3 to parents


If no parent, siblings (brother and/or sister) get 1/3

All to children

1/3 to spouse

2/3 to child

1/3 to spouse

2/3 to children

Parents: father and/or mother

or

Siblings or their descendants

or

Nephews and nieces

 

Investigate Provincial Family Law

Provincial laws governing the equalization of family property between couples and the rights of a surviving “spouse” may impact asset distributions. Investigate the rules and seek out professional advice in your province. Compare entitlements under a provincial family law act (Family Patrimony in Quebec, which applies to married or civil union spouses only), if applicable, versus intestacy legislation to assess which method to elect.

Investigate the Definition of a Spouse

There is no uniform definition of spouse across the country. Legislation granting rights to partners in a marriage or spousal (common-law or same sex) relationship, upon the death of one of the partners, varies by province.

For example, in Quebec, spouse refers to a married spouse; common-law spouses (also called de facto union) have no right to the deceased’s estate if the deceased did not have a valid will. Alberta treats those in interdependent relationships outside marriage, as defined in its Adult Interdependent Relationships Act, the same as married spouses. Seek out professional advice in your province.