What Happens if You Don't Have a Will - Part 1: Who Handles Your Estate
I often get asked ‘If I don’t have a Will, what happens when I die?” The answer to this question is quite long as there are several components to it: Who handles your estate? What happens to your children? What happens to (and who gets) your assets? As such, this Blog is divided into several parts, each part dealing with one of these components.
It must first be understood that when you die without a Will in Canada, you are called an ‘intestate’ and your estate is called an ‘intestacy’. Intestacies are governed by the laws in the province or territory in which the person habitually resided at the time of their death. For example, someone who resided in Alberta and had bank accounts or real estate in Alberta at the time of their death, will be governed by Part 3: Distribution of Intestate Estates in Alberta’s Wills and Succession Act. Similarly, if you die as a resident of Prince Edward Island, then Part IV: Distribution of Estates of Intestates of Prince Edward Island’s Probate Act will govern how your estate is to be divided and handled. The same goes for every other province and territory in Canada.
Here is a chart of the legislation in the various provinces and territories that determines what happens to your estate and who will handle your estate when you die without a Will:
Who Handles Your Estate
Who Gets Your Estate
Newfoundland & Labrador
Prince Edward Island
Northwest Territories & Nunavut
When you die intestate, person(s) must volunteer to apply to the courts for a Grant of Administration (also known as Letters of Administration) to deal with your estate. A Grant is essentially a court order recognizing a person as having the legal authority to liquidate and distribute your estate. That person is called your Administrator, Estate Trustee or Personal Representative (depending on where you live in Canada).
The laws (as provided in the table above) set out a list of persons in order of priority who may apply to become your Administrator in your province or territory. That list of persons usually consists of your spouse, a list of blood relatives in descending order, creditors and finally the government. For instance, in Alberta, the Estate Administration Act specifies that if no Will exists at the time of death, then the order of priority of those entitled to apply to be named Administrator is as follows:
your surviving spouse or surviving common law partner;
your descendant other than a child or grandchild;
your niece(s) and nephew(s) but only if they will also be inheriting your estate by operation of the law (more on that in Part 3 of this Blog);
any other relative but only if they will also be inheriting your estate by operation of the law (again, more in Part 3 of this Blog);
a creditor or claimant (someone who has a right to sue you or you owe funds or damages to);
the Crown in right of Alberta (aka the government).
Oftentimes, there is more than one person who has the same priority (for instance, siblings). Some jurisdictions also place a limit on the number of persons who can be named together as Administrator. In most places, the limit is 3 people maximum. This means that all those with an equal right to apply to be named Administrator must agree on who will be chosen and renounce their right to apply. If such persons do not agree on who should act and how your estate is to be handled, then fighting and litigation inevitably results. For those of you who have not had the misery of experiencing litigation, it is time consuming, emotionally draining and can be very very costly for those involved.
Finally, not having a Will can result in the court appointing someone you would have been opposed to, to act as your Administrator. That estranged sibling or that obnoxious niece you loathed could end up handling all your affairs, including your funeral arrangements and memorial.
Stay tuned for Part 2: what happens to/with your children if you die without a Will.
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