Dying Without a Will

Gerald died last month without a will. His wife, Rita, is still alive. They had four children, but their oldest died last year, leaving behind a wife and two daughters, including Isabelle. Isabelle is wondering if she will inherit anything from her grandfather Gerald.

The law says who inherits from someone who dies without a will and the share they inherit. In this article, Éducaloi explains the rules that apply when a person dies without a will.

You can also read and download our information chart.

What happens if I die without a will?

If you were married or in a civil union, your family property, officially known as the family patrimony, will be divided. The family patrimony is property that is divided between married and civil union couples if they separate or one of them dies. It includes property such as the family residence.

Next, the rules of your marriage or civil union regime will be applied to your property.

Then, the rest of your property will be used to pay any debts you owed before you died, as well as any funeral expenses and taxes.

Whatever is left will be divided among your heirs according to the law.

Will all of my family members inherit a share of my property?

No. The law says which members of your family will inherit, and what share they will receive. To learn more about who is allowed to inherit and in what share, check out our interactive tool.

Important:  A common-law spouse is not considered an heir if there is no will. A common-law spouse can only inherit if named in a will.

Here are some common situations:

If I die without a will, is my spouse automatically protected?

Not necessarily. If you are married or in a civil union and you don’t have a will, your spouse will inherit some of your property. The previous question explains how much your spouse will receive.

If you are not married or in a civil union, the law considers that you are in a common-law or “de facto” relationship, and your partner will not inherit anything, whether you’ve been together one year, three years or 20 years.

Some tax laws and some social laws, such as the Automobile Insurance Actand the law on the Québec Pension Plan, give common law partners rights if their partners die. For example, if your common law partner died in a car accident and did not have a will, you can get compensation from the Société de l’assurance automobile du Québec (SAAQ) as a common-law partner. However, you will not get your partner’s house, RRSPs or investments.

I am separated from my spouse. Can she inherit if I don’t have a will?

It depends.

If you have a divorce judgment, then your spouse won’t inherit your property.

If you don’t have a divorce judgement, you are still married in the eyes of the law. Your spouse can claim money from your estate by asking for the division of the family patrimony, the application of your matrimonial regime and support payments. He can also inherit all or some of your property after you die. Contact a lawyer or notary to learn how the law applies to your personal and family situation.

I have children from two different relationships. Who will inherit from me and what share will they get?

The law doesn’t play favourites. They are all your children, and they will inherit in equal shares.

However, if you are married or in a civil union, your children will get 2/3 of your property and your spouse will get 1/3.

If I don’t have a will, does my adopted child have the same right to inherit my property as my other children?

Adopted children have the same rights as biological children. Therefore, if you die without a will and you have a biological daughter and an adopted daughter, they will inherit your property in equal shares.

What happens if the people entitled to inherit by law die before I do?

The children of these heirs will get their share. This is called representation.

Here is an example of representation:

John dies without a will. He has three children: Sylvia, Jack and Andrew. Sylvia died a few years ago and had two daughters, Valerie and Catherine. When John died, these were his heirs and their share of his property:

• Jack                    ->  1/3
• Andrew                ->  1/3
• Sylvia (deceased)  ->  1/3 -> her share will be divided this way:
  • Valerie      ->  1/6 (half of 1/3)
  • Catherine  ->  1/6 (half of 1/3)

If I die without a will, who will take care of my children?

The law says that when one parent dies, the other parent automatically becomes the children’s “tutor“.

If both parents are dead, responsibility for the children goes to the person the parents chose in their will or when they filed a declaration with the Public Curator.

A child under the age of 18 must have a tutor. Therefore, if the parents did not appoint one in their wills or did not file a declaration with the Public Curator, then a court has to appoint a tutor for the child. A tutor has the same powers and duties as a parent. She must manage the child’s property, if there is any, and she must feed and educate the child and give him a place to live.

A lawyer or notary can help you appoint a tutor for your child.

Who will take care of settling my affairs if I don’t have a will?

If you die without a will, the people who will inherit – your heirs – from you will be responsible for settling your affairs. The heirs can choose one person to do this. The heirs make this choice by a majority vote. The person chosen to settle your affairs is called the “liquidator” of your estate.

When settling your estate, the liquidator can’t make all decisions on her own. For example, she must get the agreement of the heirs before doing certain things such as selling your house.