What does dying intestate mean?
When you make a will, you make a plan for what will happen to your assets (the things you own) and liabilities (the things you owe) after you die. Part of making a will involves appointing an executor who will make sure these plans are followed.
When you die intestate, this means you die without having made a legal will, which can have lots of implications for your loved ones.
What happens if you die intestate?
If you die without a will, some of your assets will be transferred into what’s called your “estate”, while others may flow directly to a named beneficiary if you have one.
For example, if you have a named beneficiary on a life insurance policy, they will receive the death benefit directly without it having to go through your estate. This means you won’t need to pay probate taxes on your insurance proceeds, and your beneficiary may receive the funds faster.
Without a will, legislation in your province or territory will determine who receives your estate. This could mean assets such as:
- Your home, if not owned jointly with someone else
- Your business
- Bank accounts
- Family heirlooms
- Insurance proceeds, investment accounts and retirement savings (if no direct beneficiary is named)
- Collectibles, such as artwork, vehicles and jewellery
The laws regarding how this is done will vary depending on where you live.
It will also depend on how you own these assets – for example, there may be different rules for things you owned jointly, like property or joint bank account, versus things you owned by yourself.
Essentially dying without a will means you have no say over how your assets are distributed, and how this is done may not reflect your wishes.
It can also result in increased costs and the time it will take to divide your assets, and dying intestate can also have significant impact on loved ones.
How dying without a will impacts your family and friends
Learning you didn’t make a will can come as a shock to your friends and family, and they may feel overwhelmed as there are no instructions on how to follow through on your wishes.
For example, it may fall to them to figure out things such as your desired plans for your funeral/burial, along with how they’ll pay for it. The estate may also be responsible for paying probate taxes.
If you wanted to donate a portion of your estate to a charity that was important to you or leave something for friends as a gift, they’ll have no way of knowing or actioning your wishes without a will.
Importantly, they’ll have no say in how your assets are distributed between family, which could cause stress and contention.
Potential impacts on your spouse
Some people may assume that if you die without a will, your possessions and property are left solely to your spouse, but this may not be the case.
The rules around how spouses inherit your estate will vary depending on your province or territory of residence.
For example, if you die intestate while in a common-law relationship in Ontario or Quebec, your surviving spouse wouldn’t inherit any part of your estate. Rules are different for civil partnerships and marriages, and how much your spouse will receive will depend on if you have any children.
Potential impacts on your children
If you have children, assets may split between each of them as well as your spouse.
Without a will however, you’re unable to specify which percentage of your estate should go to which child. If your children are under 18 and you don’t have a will in which you’ve named a trustee, they may not be able to access any money you’ve left them until they’re a legal adult.
How legislation in each province or territory approaches managing an estate will vary depending on where you live, so make sure to check the applicable website for details specific to you:
- Alberta – Wills and Succession Act
- British Columbia – Wills, Estates and Succession Act
- Manitoba – Intestate Succession Act
- New Brunswick – Devolution of Estates Act
- Northwest Territories – Intestate Succession Act | PDF 116kbOpens a new website in a new window
- Nova Scotia – Intestate Succession Act
- Nunavut – Intestate Succession Act
- Ontario – Succession Law Reform Act
- Prince Edward Island – Probate Act | PDF 658kbOpens a new website in a new window
- Quebec – Civil Code of Quebec
- Saskatchewan – The Intestate Succession Act
- Yukon – Estate Administration Act | PDF 1.2mbOpens a new website in a new window
How to make a will
When it comes to writing a will in Canada, you have 2 options – a Handwritten will (also known as Holographic will), or non-Handwritten will. The difference between the 2 is whether or not witnesses are required.
A Handwritten will simply requires you to write in your own hand (as opposed to typing and printing off a document) and to sign your signature. It doesn’t require a witness.
A non-Handwritten will can be digital or printed, but has technical witness requirements that vary depending on where you live.
Do-it-yourself wills may seem like a good deal, but the risks can outweigh the benefits. Issues that seem minor, such as the wrong choice of wording, or a failure to stick to exact legal processes and signature requirements can derail the best-laid plans.
Hiring a lawyer to write your will
Hiring an experienced lawyer or notary for your estate planning doesn’t have to cost a lot and is a positive investment in your estate’s legacy.
A lawyer can be especially helpful if you have a large or complicated estate, are divorced or have a blended family, or want to include custom clauses that reflect your specific circumstance. Their expertise can help ensure your will is compliant and legally binding, and may also be able to help lower your loved ones’ tax burden on your state.
Of course, a will is only part of the plans you can make to help ensure your loved ones are protected once you’re gone. Making sure you have life insurance in place, as well as segregated funds and well as registered plans with up-to-date beneficiaries can also help ease the financial burden on your family.