Dying Without A Will

Dying Without A Will

57% of Canadians don’t have a will. If you’re a part of that number and find yourself wondering if you need a will or what might happen if you die without one, this article is for you.

Overview:

  • You do need a will in order to decide who will your assets go to, who will be your executor and if you have kids, who will step in as their guardian to take care of them
  • When you die without a will, you’ve died intestate and your estate will be distributed to your next of kin by the government using provincial laws - and it may be very different from how you would have wanted
  • Dying without a will creates a lot of work and stress for the loved ones you leave behind
  • Dying without a will leaves a common-law-spouse without a right to a share of the estate without making a claim against the estate.

Online Legal Wills - Dying Without a Will

Dying Intestate

If you die without a will, you’re considered to have died intestate. This means that while the government doesn’t automatically get your estate, it does get to use provincial laws to decide how to distribute your estate and appoint your executor. Your estate includes all of your assets (anything you possess of financial or other value) and any debts. What happens with your estate varies from province to province and it may be very different from what you would have wanted since the government doesn’t take into account the specific needs of individual families.

So what exactly happens if I die intestate?

The first consequence of dying intestate may be shock for your surviving loved ones - family and friends are often surprised to learn you didn’t have a will. They may also be shocked to learn how much time, money and work will be required before your estate can be distributed. Without instructions on how you want your property to be distributed, what type of funeral you’d like and what you want to be done with your body, there will be delays in wrapping everything up.

Who will be in charge of my estate?

Someone will have to apply to the court to be appointed as the administrator (or personal representative) of the estate. The administrator has the same duties as an executor, the only difference is that the administrator can’t begin to act on your behalf until the court gives permission - which can take a while. And if nobody steps up, then the court will have to appoint a public trustee. Having a will allows for someone to begin acting on your behalf immediately after you die.

Who will take care of my children?

If your dependent children don’t have another surviving parent, the court will decide on a guardian for your children. This person gains all of the rights and responsibilities of a parent - and it may not be the person you believe will do the best job. Your kids’ inheritance will be held in a trust until they reach the age of majority (18 or 19 years of age depending on the province). This can make it difficult financially for a surviving spouse to raise a family. It is also often too young for children to know how to properly handle such a large sum of money.

Who will get my estate?

Without a will, you can’t choose who you’d like to benefit from your estate. This means you can’t leave money to a charity you care about, you can’t leave any gifts to close friends and you can’t set aside money to cover the cost of care for your furry family members. Your estate will be distributed using provincial laws that have very little flexibility. While individual cases may be handled differently, the following breaks down the typical default procedure for distributing your estate if you die intestate by each province (after your debts are paid):

Dying without a will in Ontario

Ontario uses the Succession Law Reform Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets your entire estate.
  • If you have a spouse and children, the spouse will get the first $200,000 and the remainder will be divided equally between the children and spouse.
  • If you don’t have a spouse but have children, your estate is divided equally between your children. If any of your children have died, their children (your grandchildren) get their share.
  • If you don’t have a spouse, children or grandchildren, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
  • If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Dying without a will in Manitoba

Manitoba uses the Intestate Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and child/children who also belong to your spouse, 100% of your estate goes to your spouse.
  • If you have a spouse and child/children and they do not belong to your spouse, your spouse receives $50,000 or half of your estate (whichever is larger) and one half of the remainder of the estate. The rest is divided between your children.
  • If you don’t have a spouse or children, your estate is split equally between your parents. If only one is alive, they get your entire estate..
  • If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Dying without a will in Alberta

Alberta uses the Wills and Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and child/children and those children also belong to your spouse, 100% of your estate goes to your spouse.
  • If you have a spouse and child/children and they do not belong to your spouse, your spouse receives half of your estate and the rest is divided among your children.
  • If you don’t have a spouse but have children, your estate is divided equally among your children.
  • If you don’t have a spouse or children, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
  • If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Dying without a will in Saskatchewan

Saskatchewan uses The Intestate Succession Act, The Wills Act and The Family Property Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and one child, the first $100,000 goes to your spouse and the remainder will be divided equally between your children and spouse.
  • If you have a spouse and two or more children, the first $100,000 goes to your spouse and of the remaining assets, 1/3 will go to your spouse and 2/3 will be divided equally among your children.
  • If you have children and no spouse, your estate will be equally divided among your children.
  • If you don’t have a spouse or children, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
  • If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Dying without a will in British Columbia

British Columbia uses the Wills, Estates and Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and a child who also belongs to that spouse, your spouse gets the first $300,000. The remainder is divided equally between the spouse and children.
  • If you have a spouse and children and those children do not belong to your spouse, your spouse gets the first $150,000. The remainder is divided equally between the spouse and children.
  • If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
  • If you don’t have surviving parents, your siblings will get your estate. If they’re not surviving either, their children (your nieces and nephews) get their share.

Dying without a will in Quebec

Quebec uses the Civil Code of Québec to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and children, your spouse gets 1/3 of your estate and the remaining 2/3 is divided equally between your children.
  • If you only have children, your entire estate is divided evenly among them.
  • If you have a spouse but no children and your parents are surviving, your spouse gets 2/3 of your estate and the other 1/3 is divided between your parents. If one of your parents is deceased, the other gets their share.
  • If you have a spouse, no children and no parents, but have siblings, your spouse gets 2/3 of your estate and the other ⅓ is divided among your siblings.

Dying without a will in New Brunswick

New Brunswick uses the Devolution of Estates Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and one child, all marital property goes to your spouse and the remainder is divided equally between your spouse and child.
  • If you have a spouse and children, your spouse gets all marital property and ⅓ of the remainder of your estate. The other ⅔ is divided equally between your children.
  • If you only have children, your estate will be divided equally between your children.
  • If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
  • If you have don’t have surviving parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Nova Scotia

Nova Scotia uses the Intestate Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you die leaving a spouse and children but your estate doesn’t exceed $50,000, your entire estate goes to your spouse.
  • If you have a spouse and one child and your estate exceeds $50,000, your spouse gets the first $50,000 or the home. The remainder is divided equally between your spouse and child.
  • If you have a spouse and children and your estate exceeds $50,000, your spouse gets the first $50,000 (or can elect to receive the home) and 1/3 of the estate. The remainder is divided equally between your children.
  • If you have no spouse or children, your parents will split your estate. If one is dead, the entire estate will go to the other.
  • If you have no spouse, children or parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Prince Edward Island

Prince Edward Island uses the Probate Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and one child, your estate is split evenly between them.
  • If you have a spouse and children, your spouse gets ⅓ of your estate and the remainder is split between your children.
  • If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
  • If you have no surviving parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Northwest Territories

Northwest Territories uses the Intestate Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have one spouse and one child, your spouse can elect to receive either $50,000 or the matrimonial home and the remainder of the estate is divided equally between the spouse and the child.
  • If you have a spouse and children, your spouse can elect to receive either $50,000 or the matrimonial home and ⅓ of your estate, and the remaining ⅔ is divided equally between your children.
  • If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
  • If you have no spouse, children or parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Nunavut

Nunavut uses the Intestate Succession Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and children, but your estate doesn’t exceed $50,000, your entire estate goes to your spouse.
  • If you have a spouse and one child and your estate exceeds $50,000, your spouse can elect to receive the $50,000 or the home. The remainder is divided equally between your spouse and child.
  • If you have a spouse and children and your estate exceeds $50,000, your spouse can elect to receive the $50,000 or the home. ⅓ of the remainder goes to your spouse and the other ⅔ is divided equally between your children.
  • If you have no children or spouse, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
  • If you have no surviving parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

Dying without a will in Yukon

Yukon uses the Estate Administration Act to distribute your estate if you die without a will. This is typically the order of distribution:

  • If you have a spouse but no children, your spouse gets 100% of your estate.
  • If you have a spouse and children, but your estate does not exceed $75,000, your entire estate goes to your spouse.
  • If you have a spouse and one child and your estate exceeds $75,000, your spouse is entitled to that $75,000 and the remainder is divided equally between your spouse and child.
  • If you have a spouse and children and your estate exceeds $75,000, your spouse is entitled to that $75,000 and ⅓ of your estate. The remaining ⅔ is divided equally between your children.
  • If you have no spouse or children, your parents will split your estate. If one is dead, the entire estate will go to the other.
  • If you have no surviving parents, your estate will be divided equally among your siblings. If any of your siblings are dead, their children (your nieces and nephews) will get their parent’s share.

In any province, if none of the above relatives are surviving, the government will continue to search for the next relative in line.

Takeaways

Thinking about death isn’t fun, but not planning for it is worse. Most people don’t exactly expect to die without a will - they usually assume there will be plenty of opportunities in the future to cross it off on their to-do list. Making a will should be a top priority to ensure your loved ones are cared for and to avoid leaving them with the stress and frustration that comes with an intestate estate. Whether you use a will kit, make an online will or have a lawyer prepare your will, having a will in place will ensure your estate is distributed exactly how you want and your family’s future isn’t put in the hands of a judge who knows nothing about them.