What happens if you die without a will?

Dying without a will is called dying intestate. Your province then applies a fixed formula to your estate, and a court appoints someone to administer it. Two things go wrong: the formula rarely matches what you would have chosen, and nobody has authority to act until the court says so.

Ontario

Under the Succession Law Reform Act, if you leave a married spouse:

• No children: your spouse inherits everything.
• One child: your spouse takes the first $350,000 — the preferential share — then the remainder splits half to your spouse, half to your child.
• Two or more children: your spouse takes the first $350,000, then one third of the remainder, with two thirds shared among your children.

The $350,000 figure applies to deaths on or after 1 March 2021. For deaths before that, it is $200,000.

No spouse? Your estate goes to your children equally; then to your parents; then siblings; then nieces and nephews; then next of kin. If nobody qualifies, it goes to the Crown.

British Columbia

Under WESA, if you leave a spouse:

• No descendants: your spouse inherits everything.
• With descendants: your spouse takes your household furnishings, plus a preferential share of $300,000 if all your descendants are also your spouse’s, or $150,000 if any are not. The rest divides half to your spouse and half among your descendants.

British Columbia’s definition of spouse is broad: someone you were married to, or someone you lived with in a marriage-like relationship for at least two years. A BC common-law partner of two years inherits exactly as a married spouse would.

Alberta

Under the Wills and Succession Act:

• Spouse or adult interdependent partner, no descendants: they inherit everything.
• All your descendants are also theirs: they inherit everything. Alberta is unusually generous here — the children get nothing on intestacy, because the law assumes the surviving parent will provide for them.
• Some descendants are not theirs: your partner receives the greater of $150,000 or one half of the net estate. The remainder goes to your descendants.

Alberta’s adult interdependent partner is a category that exists nowhere else in Canada — broadly, someone you lived with in a relationship of interdependence for three years, or less if you have a child together or signed an AIP agreement. An AIP has the same intestacy rights as a spouse.

The problems the formula creates

Nobody is in charge. With a will, your executor’s authority flows from the will. Without one, someone must apply to court to be appointed administrator, and may have to post a bond. Bank accounts stay frozen in the meantime.

Your minor children’s inheritance goes to court control. Money left to a minor on intestacy typically must be paid into court or to a guardian of property, and is released at the age of majority — 18 in Ontario and Alberta, 19 in BC. A will lets you delay it to 21 or 25, and name a trustee.

No guardian is named. The people who care about your children have to apply and possibly compete.

Nothing goes to anyone outside the family tree. No stepchild you never adopted, no close friend, no charity, no godchild. The formula only knows blood and marriage.

It is slower and usually more expensive. Court applications, bonds, and disputes cost far more than a will.

What it does not affect

Assets that pass outside your estate are unaffected by intestacy: registered accounts and insurance with a named beneficiary go to that beneficiary, and jointly held property with a right of survivorship goes to the survivor. This is why some people with simple affairs die intestate without disaster — but it is luck, not planning, and it does nothing for guardianship.

Next

If you are in a common-law relationship, read common-law partners and inheritance next — the three provinces could not disagree more sharply.