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What Happens to your Assets Without a Will?

Last revision:
Last revision: November 15, 2019
Last revision:
Category: Marriage, Divorce and Family

In Canada, when someone dies without a Will, the law says that the person have died "intestate," which means that they left no instructions as to how their property is to be divided and distributed. In these circumstances, provincial or territorial legislation will govern how the property of the deceased will be distributed to their surviving relatives.

Dying without a Will can create problems for those you leave behind. First, your property will be divided according to the law, which may not be the same as how you would have divided it. Second, there will be extra time delays and expenses involved in wrapping up your affairs, and the court will have to appoint someone to act as your personal representative. The general rule is that your closest relative has the right to be appointed as your personal representative. They are appointed by applying to the court; this will give authority to the personal representative to manage and distribute the estate of the deceased.

Therefore, even if you want your property divided according to provincial or territorial law, you should still have a Will because it will reduce delays and expenses involved in wrapping up your affairs. Furthermore, once you have a Will, it is possible to modify the instructions as to how your property is to be divided by using a Codicil to a Last Will and Testament.

Finally, the law governing the division and distribution of your property will be the law of the province or territory in which you normally reside.


Alberta

In Alberta, a spouse is defined as someone who was legally married, and includes common-law partners, called 'adult interdependent partners', provided that they have cohabited for at least 3 years in a relationship of interdependence, or cohabited in a relationship of some permanence if there is a child of the relationship, or those who have entered into an adult interdependent partners agreement.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse or adult interdependent partner will receive the entire estate if the children are from that relationship.

If the children are from another relationship involving the deceased, your surviving spouse, or adult interdependent partner, can elect to receive a preferential share of $150,000, or 50% of the estate (whichever is greater) and the children receive the other 50% depending on the value of the estate.

3) If you have children, but no spouse

Your children will each inherit an equal portion of your estate.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters divide your estate.

6) If you have no spouse, no children, no parents, and no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have none of the family members mentioned

Any other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the Alberta government.


British Columbia

In British Columbia, a person will be considered your "spouse" if you were married or in a marriage-like relationship for 2 years up until the death. Spouses aren't considered to have separated if they reconcile and live together again within one year of separation, and they continue to live together for one or more periods totalling 90 days.

This means that more than one person could be the deceased's spouse and share in the estate.

Same-sex common-law partners can be spouses.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

If your spouse and you are parents of all the children, your spouse first takes a preferential share of $300,000 worth of assets. If your spouse is not parent to all the children, your spouse first takes a preferential share of $150,000 worth of assets.

Anything left over is called the residue and is divided between your spouse and your children: your spouse will receive one-half of the residue and the children share the remainder equally.

3) If you have children but no spouse

Your children will each inherit an equal portion of your estate.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters divide your estate.

6) If you have no spouse, no children, no parents, and no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have none of the family members mentioned above

Your estate goes to the British Columbia government.


Manitoba

In Manitoba, "spouse" includes common-law partners as well as separated spouses and common-law partners who had not previously divided their assets under a separation agreement.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse first takes a preferential share of $200,000 worth of assets, or 50% of the estate (whichever is greater). Anything left over is called the residue. Where the children are also children of the surviving spouse, your spouse will receive all of the residue. Where the children are not children of the surviving spouse, your spouse will receive one-half of the residue and the children will share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters divide your estate.

6) If you have no spouse, no children, no parents, and no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have none of the family members mentioned above

Any other next of kin each inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the Manitoba government.


New Brunswick

In New Brunswick, the definition of spouse extends only to legally married spouses.

Furthermore, the definition of child excludes any stepchild.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse first takes the assets that are marital property. Anything left over is called the residue and is divided between your spouse and your children: if there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.

6) If you also have no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have no nieces and nephews

All other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the New Brunswick government.


Northwest Territories

In the Northwest Territories, the definition of spouse in a successional context includes common-law partners, but excludes legally married spouses who were cohabiting with someone else at the date of death, had initiated divorce proceedings and had not reconciled, or had previously divided their assets on separation and excludes a legally married spouse where the intestate had entered into a spousal relationship with another person.

Furthermore, "child" does not include a stepchild when it comes to a succession.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse first takes preferential share of $200,000 worth of assets. Anything left over is called the residue and is divided between your spouse and your children: if there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.

6) If you also have no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have no nieces and nephews

All other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the government of the Northwest Territories.

 

Nova Scotia

In Nova Scotia, "spouse" only includes legally married spouses. It also excludes spouses "living in adultery" (i.e. in another conjugal relationship whether registered or not).

Furthermore, in a successional context, "child" does not include a stepchild or a child raised by a non-biological parent that has not been legally adopted.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse first takes preferential share of $50,000 worth of assets; your spouse may also claim the "matrimonial home" instead of share, regardless of value. Anything left over is called the residue and is divided between your spouse and your children: if there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.

6) If you also have no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have no nieces and nephews

All other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the Nova Scotia government.


Nunavut

In Nunavut, the definition of spouse in a successional context includes common-law partners, but excludes legally married spouses who were cohabiting with someone else at the date of death, had initiated divorce proceedings and had not reconciled, or had previously divided their assets on separation and excludes a legally married spouse where the intestate had entered into a spousal relationship with another person.

Furthermore, "child" does not include a stepchild when it comes to a succession.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse first takes preferential share of $50,000 worth of assets. Anything left over is called the residue and is divided between your spouse and your children: if there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.

6) If you also have no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have no nieces and nephews

All other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the Nunavut government.


Ontario

In Ontario, benefits of spouses only extend to legally married spouses. Common-law spouses will not automatically receive anything if their partners die without a Will.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse first takes a preferential share of $200,000 worth of assets. Anything left over is called the residue and is divided between your spouse and your children: if there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate. If any of them have died, that child's descendants (i.e. your grandchildren) will inherit their share.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.

6) If you also have no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have no nieces and nephews

All other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the Ontario government.


Prince Edward Island

In Prince Edward Island, benefits of spouses only extend to legally married spouses.

Furthermore, benefits of children do not extend to stepchildren.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

If there is only one child, your spouse and child each receive half of the estate.

If there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate. If any of them have died, that child's descendants (i.e. your grandchildren) will inherit their share.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.

6) If you also have no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have no nieces and nephews

All other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the Prince Edward Island government.


Saskatchewan

In Saskatchewan, the definition of "spouse" in a successional context includes common-law partners, but excludes legally married spouses who were cohabiting with someone else at the date of death.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse first takes a preferential share of $100,000 worth of assets. Anything left over is called the residue and is divided between your spouse and your children: if there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate. If any of them have died, that child's descendants (i.e. your grandchildren) will inherit their share.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.

6) If you also have no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have no nieces and nephews

All other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the Saskatchewan government.


Yukon

In Yukon, the definition of "spouse" in a successional context does not include common-law spouses although they may apply to the court for a share of the estate.

Furthermore, the definition of "child" does not include a stepchild.

1) If you have a spouse, but no children

Your spouse will inherit everything.

2) If you have a spouse and children

Your spouse first takes a preferential share of $100,000 worth of assets. Anything left over is called the residue and is divided between your spouse and your children: if there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.

3) If you have children, but no spouse

The children each inherit an equal portion of your estate. If any of them have died, that child's descendants (i.e. your grandchildren) will inherit their share.

4) If you have no spouse and no children

Your parents inherit your entire estate.

5) If you have no spouse, no children, and no parents

Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.

6) If you also have no brothers and sisters

Your nieces and nephews each inherit an equal portion of your estate.

7) If you have no nieces and nephews

All other next of kin inherit an equal portion of your estate.

8) If you have no living next of kin

Your estate goes to the Yukon government.


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