Many people assume that if they die without a will, their spouse will automatically inherit everything. While that may be true in some circumstances, Saskatchewan law contains a detailed set of rules that determines who inherits a deceased’s estate when the deceased dies without a valid will.
When someone dies without a will, they are said to have died “intestate.” In those cases, The Intestate Succession Act, 2019 governs how the estate is distributed. Rather than following the deceased person’s wishes, as they have no will, the law applies a predetermined formula to determine who receives the estate.
Who administers the estate?
When there is no will, there is also no executor. Instead, someone must apply to the Saskatchewan Court of King’s Bench for “Letters of Administration”, which, when granted, grants authority to the applicant to manage the deceased’s estate. The administrator of an estate is responsible for gathering assets, paying debts and taxes, and distributing the estate according to Saskatchewan law.
When an application is made for Letters of Administration, priority to manage a deceased’s estate is (generally) given to:
-
-
-
- The deceased’s spouse;
- The deceased’s children;
- The deceased’s grandchildren and other descendants;
- The deceased’s parents;
- The deceased’s siblings;
- The deceased’s nieces and nephews; and
- Other next of kin.
-
-
Who are the beneficiaries to the estate?
If you die without a will and leave a spouse and no descendants, your spouse will inherit your entire estate. Saskatchewan’s definition of “spouse” extends beyond married couples. In certain circumstances, a common-law partner who cohabited with the deceased in a spousal relationship for at least two years may also qualify as a spouse under the legislation.
If you die without a will and leave a spouse and children, the beneficiaries of the estate will be dependent upon the family circumstances. Varying family circumstances such as whether all the deceased’s children are also the children of the surviving spouse or whether one or more of the deceased children are not the children of the surviving spouse will impact who receives the estate. The legislated rules become more complex when one or more of the deceased’s children are not children of the surviving spouse. Blended families often create unexpected results under intestacy legislation, which is one of the many reasons that a properly drafted will is important.
If there is no surviving spouse, the estate generally passes to the deceased’s descendants (children, grandchildren, and further descendants).
If there is no surviving spouse and no descendants, intestate law continues down the deceased’s family tree to determine who should receive the estate:
-
-
-
- Parents inherit first;
- If there are no surviving parents, the estate passes to the descendants of the parents (such as siblings, nieces, and nephews);
- If none exist, the estate passes to grandparents and their descendants;
- If necessary, the law extends to great-grandparents and their descendants.
-
-
The legislation sets out a clear order of priority to determine who is entitled to inherit.
What about separated spouses?
Being legally married does not always mean a spouse will inherit their deceased spouse’s estate. Under Saskatchewan law, a spouse may lose their entitlement to inherit on an intestacy if the spouses had been living separate and apart for more than two years, were involved in certain family law proceedings, or had already made arrangements that finalized their property and family affairs. Ensuring you have a properly drafted and updated will in place will prevent unintended consequences of dying intestate.
What problems can dying without a will cause?
Even where the legislation provides a roadmap for distributing an estate, dying without a will often creates additional challenges, including:
-
-
-
- Delays while an administrator is appointed;
- Increased legal and administrative costs;
- Family disputes regarding who should administer the estate;
- Unintended distributions in blended family situations;
- Uncertainty regarding personal wishes; and
- A lack of planning for minor children, beneficiaries with special needs, or unique assets.
-
-
While intestacy legislation provides a default plan, it is not a substitute for a carefully considered estate plan.
Key Takeaway
A properly drafted will allows you, not the government, to decide who will inherit your assets, who will administer your estate, and how your affairs will be managed after your death. If you do not have a will, or if your family circumstances have changed since you last prepared one, it is time to review and prepare your estate plan.
At Avenue Law LLP, we help Saskatchewan residents prepare wills and plan for the future with confidence. Contact our Estate Planning Team to discuss your estate planning needs and ensure your wishes are clearly documented.
This article is intended for general informational purposes only and should not be taken as legal advice. It does not address the specific circumstances of any individual case and is not a substitute for obtaining advice from a qualified lawyer. Reading this article does not create a solicitor-client relationship, and you are encouraged to consult legal counsel before making any decisions regarding your legal rights or obligations.
