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Many people pass away without leaving a will, or they create a will but fail to include all their assets. Any part of an estate not covered by a will is considered an intestate estate and the deceased is called the intestate.
Perhaps you are a person who is considering entering a state of intestacy — you haven’t made a will and you don’t plan to — and you are looking to make an informed decision as to how much you would like to burden your loved ones from beyond the grave.
Or maybe you are the loved one, and have found yourself in the unhappy position of dealing with an intestate estate. After confirming that there truly is no will, you are wondering, “What now?”
Whatever your position, here are two “whos” to consider when confronted with (or leaving behind) an intestate estate.
1) Who administers the intestate estate?
When there is a will, the act of distribution is called probating, and often requires an application to the court — typically by the executor — for a grant of probate. (Not to be confused with “probation.” Though the two words share the same Latin root probare and the feeling of someone probating a will, where any misstep will land you in court, feels a lot like being on probation minus the ankle monitor, the two words have distinct legal meanings.)
When there is no will, the assets still need to be distributed, so someone has to apply to the Court for permission to administer the intestate estate, in the form of a grant of administration.
The Court will determine who has priority to administer the estate based on a list provided in the Estate Administration Act, which prioritizes people based on their relationship to the deceased: surviving spouse → child of Intestate → grandchild of Intestate, and so on. If the person with priority to administer does not want to, they can nominate someone else in their stead.
2) Who gets the intestate estate?
When there is a will, the beneficiaries are determined. For an intestate estate, legislation gives a list of eligible beneficiaries, and depending on the Intestate’s relationships — or lack thereof — this can be complicated. The following are the common distributions, and a chart, simplifying the designated beneficiaries from the Wills and Succession Act.
- If the deceased (Intestate) had one surviving spouse/common-law partner (referred to as an Adult Interdependent Partner in the legislation) and either no children, or children exclusively with that spouse, the situation is simple: the spouse is the 100% beneficiary.
- If there is a surviving spouse and the deceased had a child from a different relationship — whether or not the deceased maintained a relationship with that child — the spouse and the child each get 50% of the intestate estate.
Built into the legislation is some accommodation for a small estate. The spouse will get whichever amount is higher: 50% of the intestate estate or an amount dictated by the regulations, and the child/children get the rest. As of Sept. 2024, the amount was $150,000. - If the deceased had children from multiple relationships, the spouse will get 50% and the children will equally split the other 50%.
- If there is no surviving spouse, or the deceased and the spouse had separated, legislation provides a list of family relations who would have priority.The Court looks first for descendants, then parents, then children of parents, then surviving grandparents and so on up to four relationships — branches — removed from the deceased.
The intestate estate is to be divided per stirpes: a Latin term meaning “by branch.” It involves distributing equal shares to the descendants of a beneficiary if that beneficiary passed away the deceased. In an intestate estate, the descendants are all to receive an equal share, and if one of those descendants has predeceased the Intestate, their children will receive their share and divide it equally. The rule is designed to divide things as fairly as possible.
This is a basic overview and does not cover complexities like family support claims, minor beneficiaries, or spousal rights to the family home, to name a few.
To learn more about when you might need an estate litigator, check out our other articles about navigating probate, wills, powers of attorney, personal directives, personal representatives, avoiding sibling disputes and more.
If you have any questions or concerns about your estate planning or litigation needs, reach out to our team at BD&P to learn more, or complete the form below and BD&P will be in touch.
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