Estate Administration and Intestate Succession (Dying Without A Will)
In this section:
WILLS AND ESTATES
In this section:
If a person dies without a will, then they are considered to have died “intestate”. In this case, their estate will be distributed according to the Intestate Succession Act. Intestate succession may not be what a person had wanted, so it is important for people to consider making a will if their wishes do not align with the Intestate Succession Act.
The Intestate Succession Act lists how a person’s estate will be distributed when they die without a will based on their family members. For example, if a person dies without a will and they were married with one child, their spouse and child will have an equal 50/50 interest in the intestate person’s estate. However, if the deceased intestate person had 2 or more children, their spouse will only have a one-third interest in the estate. The other two thirds will be equally shared among the children, regardless of how many children there are.
If a person had no married spouse, or any children, but their parents are still alive, then the intestate person’s parents will have an equal 50/50 interest in the intestate person’s estate. If there is only one surviving parent, then the surviving parent will have interest in the entire estate.
The Intestate Succession Act also considers other situations where a person has no married spouse, children, or living parents. In these situations the intestate person’s brothers and sisters will receive an equal interest in the estate. If they had siblings who predeceased them, and have no living married spouse, children, parents, or siblings, then their nephew(s) and niece(s) will have an equal interest in the estate.
Additionally, if a person does have a will, but has not provided for what will happen with something that they own at their time of death, then the Intestate Succession Act will apply to any unaccounted for items.
Yes, the Intestate Succession Act does not distinguish between family members who are estranged or not estranged from a person who dies without a will.
Although someone may have become estranged to their parent, sibling, uncle, or otherwise, unless a person makes a will that determines how their estate will be distributed upon death, the Intestate Succession Act applies.
Yes, children born after a person has died can be entitled to part or all of an estate.
Section 12 of the Intestate Succession Act states that:
“Descendants and relatives of the intestate, begotten before the death of the intestate but born after, shall inherit as if they had been born in the lifetime of the intestate and had survived the intestate.”
A child born after an Intestate person’s death will have the same rights as if they were born during the lifetime of the deceased person.
Any person of the age of majority who is a resident of Newfoundland and Labrador can handle an intestate person’s estate. This is usually done through a court application to the Supreme Court of Newfoundland and Labrador (General Division).
A person, or persons, appointed by the Supreme Court of Newfoundland and Labrador (General Division) are known as administrators. They are responsible for administering an estate, including filing appropriate taxes, paying debts, and distributing a person’s estate according to the Intestate Succession Act. For more information on applying to court, please visit the Supreme Court of Newfoundland and Labrador’s website here: https://court.nl.ca/supreme/general/wills.html#Administration
Making a will provides certainty as to who will inherit under a person’s estate. The Intestate Succession Act provides additional certainty when a will is not signed. Although it is not mandatory to make a will, it can have additional benefits. If you are uncertain as to whether or not you should make a will, you should speak to a lawyer to determine what is best for your situation.
We strongly recommend consulting with a lawyer about making a will, probating an estate, or administering an estate of a person who has died without a will. Our Lawyer Referral Service offers the opportunity to consult with a lawyer referral service for 30 minutes for $40.00 (tax included). There is no obligation for the client or the lawyer to go beyond this 30 minute consultation. However, it is a good way to get some basic legal advice and guidance in estate planning. For more information, please contact us Monday-Friday 8:30AM – 4:00PM (NT) at 1-888-660-7788 (Toll Free), either (709) 722-2643 (St. John’s area), 1-888-660-7788 (Toll Free) or by email at info@publiclegalinfo.com. You may also contact our Happy Valley-Goose Bay office at (709) 896-5235 or at labrador@publiclegalinfo.com
This is issued when the deceased has not made a will. A person applying for Letters of Administration must be living in Newfoundland and Labrador.
This is form 56.04A and contains the following:
The Notice of Application will be invalid 6 months after it’s posted unless the Application for Probate is made within that time period, or if a caveat has been entered and is still in effect.
After the 5-day notice period, if there were no caveats filed and no previous grant of probate has been made, you can proceed with the Application.
This is form 56.05A. The Petition for Administration provides important information including information about the Applicant, deceased, beneficiaries, and the will. This Petition must be signed by the Applicant or the Applicant’s lawyer. It includes the following information:
These consents are signed by persons who have an equal or greater right to apply for letters of administration. They are stating that they agree to the applicant applying to be administrator over the estate. This consent is form 56.06 found on the website.
The affidavit is found in form 56. This affidavit verifies the fact the petitioner has personal knowledge of the facts in the petition. This must be sworn or affirmed and witnessed by a Lawyer, Notary, Justice of the Peace or a Commissioner of Oaths.
The inventory is found in form 56.10A. This is for property and assets located in Newfoundland and Labrador and will be used to set the amount of administration fees charged and the amount of the bond. It should:
In most cases, the petitioner must provide a bond with two sureties as security for the value of the estate. The Court may also accept the bond of a licensed insurer instead of a personal bond and two sureties. This is to ensure that the administrator of the estate will carry out the duties of administrator correctly and will pay all debts out of the estate according to the law. The bond will be in form 56.21A and include:
An applicant may apply to the Court to dispense with the bond in certain circumstances such as if the administrator is the sole beneficiary of the estate. An affidavit would have to be filed and is found on the Supreme Court website and states that:
This is issued when the deceased has a will but there is no executor named or the executor is unable or unwilling to apply for the grant. A person applying for Letters of Administration must be living in Newfoundland and Labrador.
This is form 56.04A and contains the following:
Dated and signed by the applicant or their lawyer.
The Notice of Application will be invalid 6 months after it’s posted unless the Application for Probate is made within that time period, or if a caveat has been entered and is still in effect.
After the 5-day notice period, if there were no caveats filed and no previous grant of probate or administration have been made, you can proceed with the Application.
This is form 56.05A. The Petition for Administration provides important information including information about the Applicant, deceased, beneficiaries, and the will. This Petition must be signed by the Applicant or the Applicant’s lawyer. It includes the following information:
These consents are signed by persons who have an equal or greater right to apply for letters of administration. They are stating that they agree to the applicant applying to be administrator over the estate. This consent is form 56.06 found on the website.
If the executor is named and is unwilling or unable to be the executor, they must sign a renunciation of probate stating that they have not done anything with the estate and that they will not do anything with the estate and will not interfere with the administration of the estate. This is found on the Supreme Court website.
This is found in form 56.11A. It is required as proof that the will is valid. A witness who was present at the time the will was signed will have to complete the Proof of Will.
If there are any codicils to the will, a proof of codicil must be signed as well.
The Proof of Will must include:
If the deceased was blind or used their mark (instead of a signature), or did not fully understand the language in which the will was written:
If a Proof of Will can’t be obtained from the witnesses to the will:
If a Proof of Will can’t be provided by a witness or by someone else who was present at the time of the execution of the will, the affidavit must:
If the Will is a holograph will (an unwitnessed will, signed and written wholly in the handwriting of the deceased), the Proof of Will should be:
Note: A judge may require proof in another form to satisfy the Court that the will is written and signed in the hand of the deceased
The original will must be included in the application. It should:
The inventory is found in form 56.10A. This is for property and assets located in Newfoundland and Labrador and will be used to set the amount of probate fees charged and the amount of the bond. It should:
In most cases, the petitioner must provide a bond with two sureties as security for the value of the estate. The Court may also accept the bond of a licensed insurer instead of a personal bond and two sureties. This is to ensure that the administrator of the estate will carry out the duties of administrator correctly and will pay all debts out of the estate according to the law. The bond will be in form 56.21A and include:
An applicant may apply to the Court to dispense with the bond in certain circumstances such as if the administrator is the sole beneficiary of the estate. An affidavit would have to be filed and is found on the Supreme Court website and states that:
This is issued when the deceased has a will but the executor or administrator C.T.A. dies or becomes incapacitated and cannot continue their duties after a grant is made but before the estate is completed. A person applying for Letters of Administration must be living in Newfoundland and Labrador.
This is form 56.04A and contains the following:
The Notice of Application will be invalid 6 months after it’s posted unless the Application for Probate is made within that time period, or if a caveat has been entered and is still in effect.
After the 5-day notice period, if there were no caveats filed and no previous grant of probate has been made, you can proceed with the Application.
This is form 56.05A. The Petition for Administration provides important information including information about the Applicant, deceased, beneficiaries, and the will. This Petition must be signed by the Applicant or the Applicant’s lawyer. It includes the following information:
These consents are signed by persons who have an equal or greater right to apply for letters of administration. They are stating that they agree to the applicant applying to be administrator over the estate. This consent is form 56.06 found on the website.
If the executor is named and is unwilling or unable to be the executor, they must sign a renunciation of probate stating that they have not done anything with the estate and that they will not do anything with the estate and will not interfere with the administration of the estate. This is found on the supreme Court website.
This is found in form 56.11A. It is required as proof that the will is valid. A witness who was present at the time the will was signed will have to complete the Proof of Will.
If there are any codicils to the will, a proof of codicil must be signed as well.
The Proof of Will must include:
If the deceased was blind or used their mark (instead of a signature), or did not fully understand the language in which the will was written:
If a Proof of Will can’t be obtained from the witnesses to the will:
If a Proof of Will can’t be provided by a witness or by someone else who was present at the time of the execution of the will, the affidavit must:
If the Will is a holograph will (an unwitnessed will, signed and written wholly in the handwriting of the deceased), the Proof of Will should be:
Note: A judge may require proof in another form to satisfy the Court that the will is written and signed in the hand of the deceased
The original will must be included in the application. It should:
The inventory is found in form 56.10A. This is for property and assets located in Newfoundland and Labrador and will be used to set the amount of probate fees charged and the amount of the bond. It should:
In most cases, the petitioner must provide a bond with two sureties as security for the value of the estate. The Court may also accept the bond of a licensed insurer instead of a personal bond and two sureties. This is to ensure that the administrator of the estate will carry out the duties of administrator correctly and will pay all debts out of the estate according to the law. The bond will be in form 56.21A and include:
An applicant may apply to the Court to dispense with the bond in certain circumstances such as if the administrator is the sole beneficiary of the estate. An affidavit would have to be filed and is found on the Supreme Court website and states that: