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Friday, July 9, 2010

Does intestacy work differently in different provinces?

Intestacy refers to the way a deceased person's estate is distributed if that person did not leave a Will. Every province and territory in Canada has laws that describe who is to get the estate of an intestate person, and in what proportions. The law is not the same everywhere.

Most provinces, including Alberta, have a system that's sometimes called the "per stirpes" system. Manitoba, for example, is different and has a "per capita at each generation" system. The per stirpes system passes down a share through the bloodline of an individual to succeeding generations. The other system passes down a share by finding the nearest generation that has at least one person surviving, and giving the share equally to the people in that generation. I find the easiest way to understand the difference is to use examples.

If Wanda dies without a Will and has two children, Ian and Florence, under both systems her children would share her estate equally. But what if Ian had died before Wanda, and left two children of his own?

Under the per stirpes system, Florence would get 50% of the estate and Ian's children would share his 50%, each getting 25% of the estate. This is because Ian's share is being passed down through his bloodline.

Under the nearest generation system, Florence would get the whole estate and Ian's children would get nothing. This is because the nearest generation to Wanda that has anyone surviving is Florence's generation, and she is the only person alive in that group.

What if Wanda died, but both Ian and Florence had died before she did? Let's say that Florence had one child. Under the per stirpes system, Ian's 50% share goes equally to his children so they each get 25%. Florence's child takes Florence's 50%. Again, each share follows the bloodline of the person.

Under the next generation system, there is nobody left in the first generation, since Ian and Florence are gone. Then we look at the next generation and we see that there are three survivors, those being Ian's two children and Florence's one child. These three would each take an equal share of the estate, or 33%.

Remember that these are the rules on intestacy, so they are the default system for those who don't make Wills. You can set up whatever arrangements you think are fair by making a Will.

1 comment:

  1. Hi , I interested in the Canadian Indian Act. For the distribution of property on intestacy is there different rules for First Nation's people versus First Nation's , thank you for your reply.


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