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Wednesday, January 15, 2014

Who gets the estate if there is no will and no living relatives?

Curious as to what happens when a person dies without a will and has no relatives? One of my readers recently mentioned this situation. His note and my response are below.

"I believe that this would be a very rare occurrence but I am curious as to how it would be handled.
Lets say a person, who does not have any living relatives and does not have any beneficiaries named, dies intestate who would benefit from his estate?"

Each province and territory in Canada has legislation that sets out who receives the estate of a person who dies without a will. There are some variations from place to place but generally the arrangement goes like this:

If a person leaves  a spouse but no children, the spouse gets the estate.

If a person leaves a spouse and children, there is some division between them, depending on the province of residence and other factors. Note that if one of the deceased's children had already died leaving children, those children (grand-children of the deceased, and legally called "issue") would inherit their parent's share.

If a person leaves no spouse or issue, the estate would to to his or her parents.

If a person leaves no spouse, issue, or parents, the estate would to to his or her siblings. Note that if one of the siblings had already died, that sibling's children (nieces and nephews of the deceased) would inherit their parent's share.

If a person leaves no spouse, issue, parents, or siblings, the estate would go to his or her nieces and nephews. The share of a deceased niece or nephew would not go to that person's children but would instead be shared among the surviving nieces and nephews.

If a person leaves none of these relatives, the estate would be divided among all next-of-kin who are the closest relatives.

I agree with you that it's relatively rare that no relatives at all can be found. However, money has to go somewhere as it cannot sit forever in the name of someone who has passed away. The estate would end up being paid to the government of the province in which the deceased lived. In this situation, the government is referred to as "the ultimate heir" because it's the last resort.

7 comments:

  1. My mom apparently died without a will in Alberta but had previously given my brother full share and access to her assets (investments and condo and bank accounts). Do we sisters have any recourse to get a portion of assets?

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    Replies
    1. I'm going to need more info. There are two contradictory terms in your question, and both are important. You said that your mother gave your brother "full share" and you also said "access". There is a huge difference legally because giving a share means giving ownership while giving access means your mother would retain ownership but allow your brother to access the accounts, I assume on her behalf.

      What do you mean by "full share"? Do you mean she gave the assets to him outright? Or added him as a joint owner? Or gave him what his inheritance share would be? Details please!

      As for "access", how did she give him that? Did she appoint him under a power of attorney document? Did she add him as a joint owner?

      Lynne

      Delete
  2. Hi I replied in an email which may have been incorrect.
    My brothers name is on the deed not sure if it's with hers or solely, I haven't any way of knowing.
    My brother says its moms wishes he have everything - so im dumbfounded.
    We did see statement of investments with both his and her name on as owners.
    My younger sister was named as beneficiary of one of them,
    Me and my older sister receive nothing and my brother said he wouldn't split the proceeds of selling the condo according to moms wishes - his word no documentation.

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  3. when there is no will and only neices and nephews left, in a same sex common law relationship, how are the assest divided?

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    Replies
    1. I can't provide an answer to this because there are facts I don't have. The main missing fact is which province the deceased lived in. Some provinces don't recognize common law relationships at all, while others specifically state that common law relationships (same-sex or opposites-sex) are for inheritance purposes the same as legal marriages.

      Intestacy laws are surprisingly different from province to province.

      Other things that will factor into the situation are whether the partner was named as beneficiary on things like an RRSP or life insurance policy (in which case those items will be paid directly to the partner even without a will) and whether the partner was a joint owner of any assets.

      You haven't said whether one of the partners has passed away but hopefully it's a situation in which a bit of planning and preparation can still be done.

      Lynne

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  4. my brother dies with no will, had no children or wife .my brother and i were all he had. he had a company pension-worked 16 years til let go with one year paying serverance. there was no beneficiary on the pension but i was on the 10k life insurance benefit. The company wants me to set up as executor so they can discharge the money. He had thousands inn debt and they don't want to tell me the amount in pension. Who gets the money if my brother and i don't want to be executors because of fear the debt will be more than pension and we might be liable?don't they have to send to next of kin if no will or trustee or executor?

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    Replies
    1. Yet another family who wants the money but not any responsibility.

      No, they don't have to send anything to next of kin.

      If you are named on the life insurance benefit, they should pay it to you without any need for an executor or trustee. When someone is directly named, it doesn't go through the estate and therefore no executor is needed. If you are absolutely positive that you are named on the policy in your personal capacity and not as a trustee for anyone else then they are wrong and should be paying it to you. However, I am not sure that you are named, because you seem to be relying on the issue of being the next of kin, and you are concerned about the policy falling into the estate to be taken by debts.

      Lynne

      Delete

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