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What Happens if You Don’t Have a Will: Part 4 – What Happens to Your Property

In this part, Part 4, we are going to cover what happens to your property if you are single and do not have children and you die without a Will (you die intestate).

One thing we need to do before we go on is define legal terms that are used in this area of the law when discussing distribution of property. Those terms are: descendants. per stirpes and per capita.

Descendants means all lineal blood (or adopted) next-of-kin. For example, great grandparent, grandparent, parent, child, grandchild, great grandchild.

Per capita talks about the division of estate property and means that an estate is defined equally amongst all descendants.

Per stirpes means the division of an estate amongst descendants like the branches of a tree and does not necessarily result in equal splitting amongst all descendants. Essentially, per stirpes means that the estate will be divided equally among the initial (first-in-line) descendants. Consider the first-in-line or initial descendants to each be their own tree trunk. If one of those "tree trunks" die, each branch of that tree will receive an equal share of the portion the tree trunk received. Some trees have more branches than others, so not all branches of all trees will receive the same amount. For example, grandma dies but has three children. Those children have their own children (grandma's grandchildren): one has 5 children, another has 3 children and another has one child. When grandma dies, her estate is divided equally amongst her children, so each child receives 1/3. If each of those children have also died, then each of their shares will be divided equally among each of their respective children. So, the first child's 1/3 share will be split equally among his/her 5 children resulting in each of those grandchildren receiving 1/15th of grandma's estate. The second child's 1/3 share will be split equally amongst his/her 3 children resulting in each of those grandchildren receive 1/9th of grandma's estate. The third child's share will be passed down to his/her only child, so that grandchild receives 1/3 of grandma's estate. As can be seen, not every grandchild inherits the same amount from grandma when her estate is divided per stirpes. And not every grandchild will receive, it is only those whose parent has died that will receive.

When you die without a Will, the law specifies that your estate will be divided amongst kinship (meaning blood or adopted relatives) per stirpes.

Now that that information is as clear as mud, let's dive right in. We are going to use the following parentellic distribution chart that was created by Alberta's Ministry of Justice and Solicitor General which several provinces and territories have adopted to explain what happens to your estate if you die without a spouse (common-law or married) and without children.

As you can see from the above chart, if you are single with no children, then your estate goes equally to your surviving (either by blood or adoption) parents (Green squares #1). If both parents are deceased, then your estate is divided amongst your surviving siblings (Green squares #2). If there are no surviving siblings, then your estate will be divided amongst your surviving nieces and nephews per stirpes (Green squares #3). If there are no surviving nieces and nephews, then your estate will be divided amongst your grandnieces and grandnephews (Green squares #4). At this point in several jurisdictions, the division of an estate ceases, even if there are descendants below surviving.

No inheritance rights are recognized beyond the fourth degree of kinship. The reason for this cut-off is that it is time consuming and expensive to locate distant relatives. The cut-off prevents depletion of the estate by the expense associated with searching for remote relatives of the deceased. In most cases the deceased will have had no relationship with and may not even be aware of these distant relatives. If there is no surviving next-of-kin within the fourth degree, the estate then goes to the Provincial/Territorial Government to be used as general revenue.

If you are single with no children and are an only child (no siblings) then your estate is divided among your surviving parents (Green square #1). We then move on to follow the pink diamonds to find out who is next in line to inherit: your grandparents equally (Pink diamond #2) then your aunts and uncles (Pink diamond #3), then your cousins (Pink diamond #4). It is important to note that it will not all be cousins or all aunts and uncles who inherit; it may be a mix of aunts and uncles, cousins and a grandparent that inherit as inheritances are per stirpes. Finding the descendants in this situation can be an absolute nightmare. I once had an estate file that dealt with this exact situation. It had 58 beneficiaries who lived in several countries. Many were cousins and aunts and uncles who didn't even know the deceased nor each other. The estate was divided per stirpes, as required by the law (and according to the parentellic distribution chart) with some beneficiaries receiving less than 1% of the estate. It took nearly 2 years to locate all the next-of-kin who would inherit. The person who volunteered to handle the deceased's estate wasn't even in the category of people who would inherit as she was 5 degrees of kinship and was the daughter of one of the deceased's cousins. This estate was lucky, many estates like this don't have anyone willing to step up and handle the onerous task of finding all relatives, making funeral arrangements, dealing with taxes, selling property, obtaining a Grant of Administration and the like.

Finally, if you have no surviving next-of-kin in the pink diamond line (remember, you may have next-of-kin surviving in this line, but they have no right to inherit because they are 5 degrees removed and so your estate goes to the Government), then we move up to the purple circles. So first to your parents (Green Squares #1), then to your grandparents, which could be 4 people (pink diamonds #2) then to your great grandparents which could be 8 different people (Purple circles #3) then to your great aunts and uncles (Purple circles #4). Unless you die very young, it is extremely unlikely that any of these persons will be alive to inherit, and your estate will end up going to the Government.

As you can see, friends, family, step-children, in-laws and charities are not included as beneficiaries to receive your estate. This can either be viewed as a good thing or a bad thing. If you view it as a bad thing, then it is time for you to make a Will.

© 2022 Make Your Own Wills

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