What Happens When Someone Dies Without a Will in Newfoundland and Labrador

When a family member dies without a will, nobody has been named to look after the estate and nobody has written down who should receive what. That can feel overwhelming at a difficult time, but the law in Newfoundland and Labrador has a set of default rules that cover exactly this situation.

This article explains the general process: who can apply to deal with the estate, how the Intestate Succession Act divides it, what extra rights a spouse or dependant may have, and what the court process involves. Every family's facts are different, so treat this as a map and not a substitute for advice on your own situation.

This article covers the law of Newfoundland and Labrador.

Who deals with the estate when there is no will

Without a will there is no executor. Where there is no executor, an administrator must be appointed by the Supreme Court of Newfoundland and Labrador, and the court grants administration to the next of kin.

The Rules of the Supreme Court set an order of priority for who may be appointed: the spouse, then children, parents, siblings and grandparents, then creditors and the Crown, subject to the judge's discretion. The court must also prefer a person resident in the province over someone with an equal right, unless a judge orders otherwise.

Probate is not strictly required by law in the province, but a person who wants to sell, transfer or collect assets held solely in the deceased's name needs a grant to prove the right to do so. There is no time limit to apply, and the court says a lawyer is not needed to administer an estate. If you are unsure which route applies, the court advises speaking with a lawyer.

Who inherits under the Intestate Succession Act

The Intestate Succession Act sets a fixed order of inheritance. The spouse's share depends on whether there are children.

• Spouse and one child: the spouse receives 1/2 of the estate.
• Spouse and more than one child: the spouse receives 1/3.
• Children or other descendants and no spouse: the estate is divided per stirpes among the descendants.
• Spouse and no descendants: the whole estate goes to the spouse.

If there is no spouse and no descendants, the estate goes to the parents equally or to the surviving parent, then to brothers and sisters, with the children of a deceased sibling taking their parent's share. After that it passes to nephews and nieces equally, and then to next of kin of equal degree. Half-blood relatives share equally with whole-blood relatives.

Some money never becomes part of the estate. For example, life insurance with a named beneficiary is generally paid outside the estate, though a designation of the insured's heirs, next of kin or estate is treated as a designation of the personal representative, so the money is paid to the estate. A matrimonial home held jointly by spouses passes to the survivor without probate. Whether a common-law partner inherits on an intestacy is worth confirming with a lawyer.

Extra rights for a spouse or dependant

The intestacy share is not always the end of the story. A surviving spouse's rights under the Family Law Act are in addition to rights arising on intestacy or by will. A surviving spouse may apply to divide matrimonial assets equally within 1 year after the first spouse's death, and that deadline can be extended on reasonable grounds.

Separately, a dependant, meaning a spouse, cohabiting partner or child, may apply under the Family Relief Act if an intestate share is inadequate for maintenance and support. The application must be made within 6 months after the grant, although a judge may allow it for any undistributed part of the estate. A cohabiting partner needs continuous conjugal cohabitation outside marriage for at least 2 years, or at least 1 year if they are together the parents of a child.

The court process and costs

Every application starts by posting a Notice of Application with the Registry Office (Form 56.04A). After the 5-day notice period, the applicant confirms that no caveat has been entered and no previous grant has been made, then files the petition and the inventory (Form 56.10A). No grant may be made until the registry certifies whether a caveat has been entered and whether a previous grant exists.

A Notice of Application posted on or after January 1, 2003 lapses 6 months after posting unless an application is made in that time or a caveat has been entered. The court gives no official processing time for a grant, so be cautious about timelines quoted elsewhere.

Letters of administration are only issued if the administrator files a bond with two sureties, unless the court orders otherwise. The court may dispense with the bond on an affidavit showing no debts or adequate provision. The bond requirement does not apply to a trust company authorized in the province or to the Public Trustee.

The court fee is $60 where the estate does not exceed $1,000, plus $0.60 for each additional $100 of estate value. On a $250,000 estate, that works out to $1,554. It is payable by the administrator in a representative capacity only, not personally.

What to do next

• Search carefully for a will, including with the family's lawyer, bank or home papers, before assuming there is none.
• List the deceased's assets and debts, noting which are in their sole name and which have a named beneficiary or joint owner.
• Talk with relatives about who is entitled to apply to administer the estate under the priority order.
• Check whether anyone, such as a spouse, cohabiting partner or child, may have a claim with a deadline, including the 6-month Family Relief Act limit.
• If the deceased was a Status Indian, the court notes that Indigenous Services Canada may need to be contacted.
• Speak with a lawyer if the family is divided, the estate is complicated or you are unsure how to proceed.

Once a grant issues, the administrator has duties. Within 1 year after the grant, the holder must file an inventory and valuation and statements of what was received, paid out and still outstanding. Before distributing, the administrator notifies known creditors.

Frequently asked questions