What Happens If a Beneficiary Dies Before the Will-Maker in Saskatchewan?

You may have opened a will and found that a gift was left to someone who died before the person who made the will. It is a common and upsetting discovery, and families often want to know right away whether the gift is lost or whether it goes to that person's children.

This article does not give a quick answer on that question, because the answer turns on the exact wording of the will and the law that applies to it. What it does is show you what to check, how the estate process treats beneficiaries, and which other claims and steps can affect who receives what in Saskatchewan.

This article covers the law of Saskatchewan.

Why the answer depends on the will

What happens to a gift when the beneficiary dies before the person who made the will depends on how the will is worded and on the law that applies. How this applies depends on your situation, so it is worth confirming with a lawyer before the executor distributes anything.

Do not assume that children automatically take their parent's place, and do not assume they never do. Read the will closely first, then get the question confirmed. A wrong guess can mean the wrong person receives a share.

What to look for in the will

• Whether the gift names a backup beneficiary if the first person has died.
• Whether the will says something about the children or family of a beneficiary who dies first.
• Whether the gift is a specific item or sum, or a share of the residue (what is left after other gifts and debts).
• Whether the will names an executor, and whether that person is still alive and willing to act.
• The date of the will and any later changes to it.

Keep proof of when the beneficiary died, such as a death certificate. You will likely need it to show the court or a lawyer exactly what happened and in what order.

How the estate process treats beneficiaries

An executor named in a will applies to the Court of King's Bench for Letters Probate. There are three kinds of grant: Letters Probate where the will names an executor, Letters of Administration where there is no will, and Letters of Administration with Will Annexed where there is a will but no executor is named, or the executor cannot or will not act.

If the person applying is not the named executor, the application is an Application for Grant of Administration with Will Annexed (Form 16-11B), and priority is set by section 10 of The Administration of Estates Act, starting with executors, then residuary beneficiaries, down to the official administrator. Priority to apply is set by section 10 of The Administration of Estates Act, starting with executors, then residuary beneficiaries, and continuing down to the official administrator.

Beneficiaries are confirmed with executed heirship affidavits. If beneficiaries cannot be found, an heir locator may be hired, and if that fails the executor or administrator must apply to court for directions on paying out the funds.

If any beneficiary is under 18 or a dependent adult, a Notice to Public Guardian and Trustee (Form 16-12, two copies) is required. This can come up when a child steps into a share.

Debts and other claims that can affect shares

Debts of the deceased are paid from the estate and must be paid before any gifts in the will go to beneficiaries. A share, whoever ends up receiving it, may be smaller than expected once debts are dealt with.

Some family members may also have claims. Dependants include a legal, common-law or same-sex spouse, children under 18, and adult children unable to support themselves due to disability, and they may claim under The Dependants' Relief Act, 1996 where the will makes inadequate provision. A surviving spouse's application for a family property order may not be commenced more than six months after the grant of probate or administration, and spouses who signed a valid waiver cannot apply.

Distribution may be delayed six months after Letters are obtained where a dependant may claim or a spouse may apply for division of family property, and final distribution cannot occur until the CRA clearance certificate is received.

What to do next

• Find the original will and read the gift to the person who died first.
• Gather the death certificates for both the will-maker and the beneficiary.
• List who the beneficiary's children or other family are, and whether any are under 18 or dependent adults.
• Ask whether probate is needed. Letters are required for any land transaction with Information Services Corporation if the estate includes real estate.
• Hold off on distributing the disputed share until the wording and law have been confirmed.
• Speak with a lawyer if family members disagree about who should receive the share.

Frequently asked questions