If you die without a will, you are said to die "intestate", and the rules set out in the Nova Scotia Intestate Succession Act determine who gets your estate:
- Your property is distributed to the people considered to be your nearest relatives as listed in the Intestate Succession Act. There is no flexibility. The distribution may be different from what you would want
- Common law partners, including same-sex partners, are not included on the Intestate Succession Act distribution list unless they have a registered domestic partnership. Married spouses are covered, but the distribution rules are inflexible
- If common law or same-sex spouses did not have a registered domestic partnership, the surviving spouse may have to go to court to try to get financial support or to make a claim on the estate
- Children are included in the Intestate Succession Act distribution list
- There will be extra steps in the process of settling your estate, which can mean additional costs and delays. This may add to your family’s pain and distress. It will also mean that there will be less left to distribute
- Family members may disagree and argue about how you intended to distribute your property
- Someone will have to offer to look after your estate. The person must apply and be appointed by the Probate Court as an administrator or a personal representative for your estate. That person may not be someone you would have chosen
- If you and your spouse die at the same time or if you are a single parent when you die and you have not chosen anyone to care for your dependent children or dependent grandchildren, someone will have to offer to take over this responsibility. The person responsible for your children or grandchildren is said to be their guardian. A person must apply to be guardian and be appointed by a court. That person might not be someone you would have chosen.
- If the court appoints a guardian to look after your children, it will also often state the terms of the guardianship. Those terms might not be what you would have chosen.
The law about intestacy also applies if you do not deal with all your property in your will. In this case, you are said to die partially intestate. The part of your estate not covered in your will is distributed according to the Intestate Succession Act.
What do you think?
The Law Reform Commission of Nova Scotia is currently looking at the Intestate Succession Act and has a survey asking for the views of Nova Scotians on how the law should be changed. The survey provides information on why Nova Scotians should make a will, and further information on how property will be divided under the current Intestate Succession Act if you do not make a will. Please go here to do the Law Reform Commission's public consultation survey and have your say!