Who Inherits If There Is No Will in New Brunswick?

When someone dies without a valid will, the law decides who inherits. In New Brunswick that order is set out in the Devolution of Estates Act, and it follows family relationships rather than what the person may have wanted.

This article walks through the order of heirs, shows how the numbers work for a spouse and children, and explains the special cases that surprise families.

This article covers the law of New Brunswick.

How an estate is administered with no will

Where there is no valid will, the Probate Court appoints an administrator, usually a family member or close friend, who collects the assets, pays debts and taxes, and distributes to those legally entitled. Administration may be granted to the spouse, next-of-kin, or the next-of-kin's spouse as the Court considers proper. A trust company authorized to do business in the Province may also be appointed.

The order of heirs

Per stirpes means the children's shares are divided by branch of the family, so a grandchild steps into the place of a parent who has died.

Examples with numbers

Suppose the residue is $300,000 and there is a spouse and one child. The spouse receives $150,000 plus the interest in marital property, and the child receives the other $150,000.

With the same residue and three children, the spouse receives $100,000 plus the marital property interest, and each child receives $66,667. If a child died leaving issue who were alive at the intestate's death, the spouse's share is worked out as if that child were still living.

The residue is what remains after debts and expenses. Funeral expenses, tax and probate fees, and other listed items are paid from estate assets in a set order.

Special cases that change the result

• Child and grandchild: the Act defines child as offspring of the first generation, which excludes grandchildren, though grandchildren take as issue per stirpes.
• Children born after death but begotten before the death inherit.
• Half-blood relatives inherit equally with the whole blood.
• An advancement made to a child is counted against that child's share.
• Common-law partners: the intestacy provisions refer only to widow and widower, so an unmarried partner has no intestate share, and the estate goes to the relatives listed in the Act.

There has been discussion of reform to include common-law partners, but it should not be assumed. Check the current law with a lawyer.

Other claims with short deadlines

A surviving married spouse may apply to the Court to have marital property divided in equal shares as against the deceased's estate. The application must be made within four months of death, extendable if the spouse did not know of the death or was prevented by circumstances beyond their control. It is available to married spouses only.

A dependant, meaning a spouse or child of the deceased or someone who was a dependant under the Family Law Act, may ask a Court of King's Bench judge for maintenance and support from the estate where their resources are insufficient, even against a will. No application may be made later than four months after the death, though a judge may allow a later one for any part of the estate still undistributed if just. A common-law partner who meets the Family Law Act test may qualify, depending on the facts. These time limits run from death, not from probate.

What to do next

• Write down the family tree: spouse, children, grandchildren, parents, siblings and any relatives who have died.
• Note any marriage, separation or common-law relationship, since it affects who qualifies.
• Note the date of death and mark the four-month point.
• Order a death certificate through Vital Statistics, $45 in person or by mail and $40 online.
• Apply for letters of administration through the Clerk of the Probate Court.
• Speak to a lawyer before distributing anything, particularly if there are gifts made during life, a blended family or a common-law partner.

Frequently asked questions