What Happens If You Die Without a Will in Manitoba?

When someone dies without a will, it is called dying intestate. You may be grieving and also facing practical questions: who is in charge, who gets what, and what has to be paid first.

This article walks through the usual order of events in Manitoba. Every family is different, so treat it as a map and confirm the details of your situation with a lawyer.

This article covers the law of Manitoba.

Who is in charge of the estate

With no will, there is no named executor. Someone has to be appointed by the court as administrator before the estate can be dealt with. Often this is a close relative who lives in Manitoba and is willing to take on the work.

Where a person the Public Guardian and Trustee (PGT) managed has died with no will, a Manitoba-resident relative may apply to administer, and if none does, the PGT can apply. More generally, the PGT describes itself as an administrator of last resort, acting only when no one else is willing, capable and appropriate, for example where no one resident in Manitoba can act or there is a dispute.

The court may appoint the PGT as administrator if the deceased left property in Manitoba and no grant has been issued here. Unless the court orders otherwise, that application cannot be made until 30 days after death where there is no will. The PGT is not required to accept an appointment just because it has the power to, unless a court orders it.

Who inherits

The Intestate Succession Act sets the order. If there is a surviving spouse or common-law partner and no children or other descendants, the spouse or partner takes the entire estate. If all the deceased's descendants are also descendants of the survivor, the survivor still takes everything.

Where some descendants are not also the survivor's, the survivor takes the greater of $50,000 or one-half of the estate, plus one-half of any remainder, and the rest goes to the descendants. Whatever the spouse or partner does not take goes first to the children and more remote descendants.

If there are no descendants, the estate goes to the parents, then to siblings and their children, then to more distant relatives. If no one qualifies under the Act, the estate goes to the Crown. Our companion article on The Intestate Succession Act sets out the order in more detail.

A person who does not survive the deceased by 15 days, not counting the day of death, is treated as having died first.

Debts, funeral costs and tax

Heirs are paid last. Estate assets must cover debts before beneficiaries inherit, and paying debts is one of the administrator's tasks. The funeral can be arranged by the next of kin or a friend, and the estate pays. If the estate lacks money for a basic funeral, Employment and Income Assistance may be asked to pay.

• A final tax return is due by April 30 of the following year for a death between January 1 and October 31, and within 6 months of the date of death for a death between November 1 and December 31.
• The CRA says the legal representative should obtain a clearance certificate before distributing assets.
• Distributing without one while tax is owing can make the representative personally liable up to the value of assets distributed.

Protections for a surviving spouse or partner

A survivor is not limited to the intestate share. Under The Family Property Act, a surviving married spouse or common-law partner may apply for an accounting and equalization of assets. Only the survivor may apply, and the time limit is six months from the grant of probate or letters of administration, which the court may extend in limited situations.

The administrator must serve the survivor with a prescribed notice within one month after the grant, and must not distribute the estate until the survivor consents in writing, the time to apply has passed, or an application is decided. Distributing contrary to this makes the administrator personally liable for the survivor's loss.

What to do next

• Locate the deceased's personal papers; they help identify next of kin.
• Order death certificates. Each costs $30.00, and any person with a valid reason may apply.
• Confirm no will exists by searching the home, papers and safe deposit boxes.
• Speak with a Manitoba lawyer about who should apply to administer the estate.
• Keep records of the deceased's debts, assets and expenses.

Frequently asked questions