In Nova Scotia, when an individual dies without a proper will in place, the Intestate Succession Act determines exactly who inherits the person's property and in which proportions. This provincial law follows a strict hierarchy that prioritizes spouses and children first, followed by parents, siblings, and more distant relatives if necessary.
This article explains how intestate succession works in Nova Scotia, who inherits when there's no will, what assets may bypass the estate entirely, and how proper estate planning can ensure your wishes are respected rather than leaving distribution to a predetermined legal formula.
- What Happens When Someone Dies Without a Will in Nova Scotia
- Order of Inheritance Under the Intestate Succession Act
- Share of a Surviving Spouse or Common-Law Partner
- Rights of Children and Other Descendants
- Who Inherits When There Is No Spouse or Children
- Assets That May Bypass the Estate Such as Joint Tenancy and Insurance
- Debts, Taxes, and Funeral Costs That Must Be Paid First
- Duties of an Estate Administrator in Nova Scotia
- Typical Timeline and Costs for an Intestate Estate
- How to Avoid Intestacy Through Proper Estate Planning
- Planning Your Next Steps With LM Legal Solutions
- FAQs About Intestate Succession in Nova Scotia
What Happens When Someone Dies Without a Will in Nova Scotia
A person has died "intestate" when they have passed without having a proper will in place.
In Nova Scotia, the Intestate Succession Act comes into play to determine how the person's estate gets distributed. This provincial law establishes a specific hierarchy of beneficiaries, prioritizing the surviving spouse and children first, then parents, and finally other relatives.
The Act includes what's called a preferential share: a fixed amount that goes to the deceased's spouse before the remainder of their estate gets divided. After the spouse receives the preferential share, the rest of the estate is divided according to specific rules based on surviving family members.
However, intestate succession only applies to assets that actually form part of the deceased's estate. Property held in joint tenancy, registered accounts with named beneficiaries, and life insurance policies with designated beneficiaries typically pass directly to survivors without going through this distribution process at all.
Order of Inheritance Under the Intestate Succession Act
The Intestate Succession Act follows a clear hierarchy that determines who inherits the assets of the deceased person and in which proportions. The hierarchical approach of the Act distributes assets according to the deceased's closest living relatives, though it may or may not reflect what the deceased actually wanted.
Spouse and One Child: When the deceased leaves behind a surviving spouse and one child, the spouse is entitled to receive a preferential share of the estate plus one-half of the remaining estate. The child then receives the other half of what remains.
Spouse and Multiple Children: If there are multiple children, the spouse's share of the remainder drops to ensure the children receive a larger portion collectively. The spouse still receives the preferential share but only one-third of the remaining estate. The children then divide the other two-thirds equally among themselves.
No Spouse but Children: When there is no surviving spouse, the entire estate is divided equally among all surviving children. If one of the children died before the intestate person but left their own children, those grandchildren inherit their parent's share through what's called "per stirpes" distribution. This means each branch of the family receives what their parent would have inherited.
No Spouse or Children: If the deceased has no spouse or children, the estate passes to their parents in equal shares if both are living. When only one parent survives, that parent receives the entire estate. If both parents have already passed away, the estate is divided equally among siblings, and if a sibling has died, their children inherit their parent's share.
No Surviving Next of Kin: In rare cases where no eligible family members can be located after extensive searches, the estate ultimately passes to the provincial government. The Public Trustee of Nova Scotia manages these unclaimed estates and attempts to locate any possible heirs before the Crown takes possession.
Share of a Surviving Spouse or Common-Law Partner
The definition of "spouse" under the Intestate Succession Act is critically important and often misunderstood. A legally married spouse automatically qualifies for the spousal share outlined in the Act. Registered domestic partners also receive the same inheritance rights as married couples under Nova Scotia law.
Unregistered common-law partners face a very different situation. Even if a couple has lived together for many years in a marriage-like relationship, an unregistered common-law partner does not automatically inherit under the Intestate Succession Act. Instead, they may need to make a claim to the court for support from the estate, which can be a lengthy and uncertain process.
This distinction highlights why estate planning matters so much for common-law couples. Without a will or registered domestic partnership, a surviving common-law partner could find themselves with no legal claim to property they helped build during the relationship.
Rights of Children and Other Descendants
The Intestate Succession Act treats biological children and legally adopted children identically. Both have full inheritance rights. Stepchildren, on the other hand, do not automatically inherit from a step-parent under intestate succession unless they were legally adopted.
When a child dies before their parent but leaves their own children, those grandchildren step into their parent's place through per stirpes distribution. For instance, if the deceased had three children but one child died before them leaving two children of their own, the estate would be divided into three equal shares: one for each surviving child and one to be split between the two grandchildren whose parent had died.
Who Inherits When There Is No Spouse or Children
Beyond the immediate family of the deceased, the Intestate Succession Act establishes an extended hierarchy of relatives who may inherit some of the person's estate. After parents and siblings, the order continues through more distant relatives:
Nieces and nephews may inherit if all siblings have already passed away
Grandparents may receive the estate if no nieces or nephews exist
Aunts and uncles may inherit when grandparents have also passed away
Cousins may inherit as a last resort before the Crown
Each level is completely exhausted before moving to the next. Even distant relatives you've never met could inherit before the estate would pass to the government.
Assets That May Bypass the Estate Such as Joint Tenancy and Insurance
Not all assets owned at death automatically become part of the intestate estate. Several types of property pass directly to survivors through legal mechanisms that operate outside the Intestate Succession Act.
Joint Tenancy Home Ownership: Property held in joint tenancy with right of survivorship automatically transfers to the surviving joint owner upon death. This is common with married couples who own their home together. When one spouse dies, the other becomes the sole owner immediately without the property going through the estate. Property held as tenants in common operates differently, though. The deceased's share becomes part of the estate and is distributed according to intestate succession rules rather than passing automatically to the co-owner.
Designated Beneficiary Accounts: Registered Retirement Savings Plans (RRSPs), Registered Retirement Income Funds (RRIFs), and Tax-Free Savings Accounts (TFSAs) allow you to name beneficiaries directly on the account. For properly designated beneficiaries, the funds transfer directly to that person without forming part of the estate. Bank accounts can also have beneficiary designations in many cases, allowing them to bypass the estate distribution process entirely.
Life Insurance Proceeds: Life insurance policies with named beneficiaries pay out directly to the designated individuals rather than to the estate. However, if the estate is named as the beneficiary or if no beneficiary is designated, the insurance proceeds become part of the estate and are subject to intestate distribution rules.
Registered Plans With Named Beneficiaries: Pension plans typically include provisions for surviving spouses or designated beneficiaries to receive benefits directly. Similarly, TFSAs can name a "successor holder" (usually a spouse) who takes over the account, or a beneficiary who receives the funds. Beneficiary designations take precedence over intestate succession and warrant regular review to ensure they reflect current intentions.
Debts, Taxes, and Funeral Costs That Must Be Paid First
Before any assets can be distributed to heirs, the estate settles all outstanding debts and obligations. This fundamental principle of estate administration protects creditors while ensuring heirs receive only what remains after legitimate claims are satisfied.
Priority of Claims: Funeral expenses receive top priority and are paid first from estate assets. Secured debts come next, which are those attached to specific property like mortgages or car loans. Unsecured debts such as credit cards and personal loans are paid after secured debts, though they still take precedence over any distribution to heirs.
Secured vs Unsecured Debts: Secured debts are backed by collateral, meaning the lender can claim the specific asset if the debt isn't paid. The most common example is a mortgage on a house. If the estate does not have the ability to pay the mortgage, the house may need to be sold. Unsecured debts have no specific collateral attached and represent general claims against the estate's total value, though they still get paid before heirs receive anything.
CRA and Probate Fees: The Canada Revenue Agency requires that a final tax return be filed for the deceased, which covers any income earned up to the date of their death. In turn, any taxes owing will be paid from the estate before any assets are distributed. Additionally, Nova Scotia charges probate fees based on the estate's value. These fees are paid when applying for a Grant of Administration to manage the intestate estate.
Duties of an Estate Administrator in Nova Scotia
When someone dies without a will, the court appoints an administrator to manage the estate rather than an executor named in a will. The administrator, often the spouse or an adult child, has significant legal responsibilities and potential personal liability if they fail to fulfill their duties properly.
Locate and Value Assets: The administrator identifies every asset owned by the deceased, from bank accounts and investments to real estate and personal property. The administrator may need to coordinate professional appraisals to establish the fair market value of any real estate, vehicles, jewelry, or other valuable items owned by the deceased. Taking proper inventory of the deceased's assets is important for calculating probate fees and ensuring proper distribution.
Advertise for Creditors: Nova Scotia law requires administrators to publish a notice to creditors in a government publication called the Royal Gazette. This advertisement gives creditors a specified period, typically 6 months, to come forward with any claims against the estate. Failing to properly advertise can leave the administrator personally liable if unknown debts surface after distribution.
Pay Debts and Taxes: Once the waiting period expires, the administrator verifies all claims and pays legitimate debts in the proper order of priority. This includes settling the final tax return with CRA and obtaining a clearance certificate confirming all taxes have been paid. Only after all debts, taxes, and administrative expenses are satisfied can the administrator proceed to distribute assets to heirs.
Distribute Remaining Estate: After all obligations are met, the administrator distributes the remaining assets according to the Intestate Succession Act's hierarchy. This may involve selling property to divide proceeds, transferring ownership of specific assets, or distributing cash from liquidated holdings. The administrator accounts for every dollar and provides documentation to all beneficiaries showing how the estate was handled.
Typical Timeline and Costs for an Intestate Estate
Administering an intestate estate generally takes longer and costs more than settling an estate with a valid will. The administrator applies to the court for a Grant of Administration, which requires additional documentation and court appearances compared to probating a will. This application alone can add several weeks or months to the timeline, particularly if there are disputes about who serves as administrator.
Most intestate estates take between 12 and 18 months to fully settle. Complex situations involving business interests, real estate in multiple jurisdictions, or family disputes can extend this considerably. Legal fees are typically higher because the administrator often needs more guidance navigating their duties, and probate fees remain the same regardless of whether there's a will.
How to Avoid Intestacy Through Proper Estate Planning
The most effective way to ensure your assets are distributed according to your wishes is through comprehensive estate planning. While the Intestate Succession Act provides a default distribution scheme, it cannot account for your specific family dynamics or intentions.
Create a Valid Nova Scotia Will: A properly executed will allows a person to specify exactly who receives what from their estate, in addition to having the ability to appoint a trusted executor to carry out a person's your wishes. The province of Nova Scotia requires that wills be signed by the testator (the person making the will) and witnessed by two individuals who are not beneficiaries. Consulting with an experienced estate planning lawyer at LM Legal Solutions ensures your will meets all legal requirements and clearly expresses your intentions.
Register a Domestic Partnership if Applicable: Common-law couples who want to ensure inheritance rights in the event of one partner passing, without a formal marriage, can register their domestic partnership with Nova Scotia Vital Statistics. This process grants registered domestic partners the same intestate succession rights as married spouses, which in turn provides crucial protection if one partner dies unexpectedly. The registration form requires both partners' signatures and basic identifying information.
Update Beneficiary Designations: It's important for a person to review all their registered accounts, insurance policies, and pension plans to confirm beneficiary designations are current and reflect their wishes. Life changes like marriage, divorce, the birth of children, or the death of a previously named beneficiary all warrant immediate updates to designations. Beneficiary designations typically override your will, so consistency across all documents is important.
Consider Joint Ownership Structures: For certain assets, such as the family home, establishing joint tenancy with right of survivorship can help ensure a smooth transfer of property to your partner or co-owner. Joint ownership isn't appropriate for every situation and can have tax and legal implications worth discussing with a professional. Bank accounts can also be structured with joint ownership or beneficiary designations to avoid probate delays while ensuring your intended recipients have immediate access to funds.
Planning Your Next Steps With LM Legal Solutions
Understanding the nuances of the Intestate Succession Act in Nova Scotia highlights why it's important to be proactive about estate planning. While the Act provides a framework for distributing assets, it cannot account for your unique family circumstances or specific wishes for your legacy.
At LM Legal Solutions, we help clients throughout Dartmouth and the Halifax Regional Municipality create comprehensive estate plans that provide clarity and peace of mind. Whether you need to draft your first will, update an existing plan, register a domestic partnership, or navigate the complexities of administering an intestate estate, our experienced team provides practical guidance tailored to your situation. Contact us today to schedule a consultation and take the important step of protecting your family's future through proper estate planning.
FAQs About Intestate Succession in Nova Scotia
What happens to digital assets if there is no will in Nova Scotia?
Digital assets, such as online accounts, cryptocurrencies, and/or digital files, may become part of the intestate estate, but accessing them presents unique challenges. Many online platforms have their own policies about account access after death, and without proper planning or a will that addresses digital assets, your administrator may need court orders to gain access.
Does the public trustee always step in when there are no heirs?
The Public Trustee of Nova Scotia becomes involved primarily when no eligible family members can be located after reasonable searches or when no one is willing to serve as administrator. The Public Trustee manages unclaimed estates and makes efforts to locate possible heirs before the estate ultimately passes to the Crown, though this is relatively rare.
Will common-law partners pay probate tax on their share?
Unregistered common-law partners are not automatically recognized as spouses under the Intestate Succession Act and therefore do not inherit through intestate succession. If they successfully make a claim to the court for support from the estate, any amount they receive would come from the estate after probate fees have already been calculated and paid.
How are family heirlooms divided without a will?
Personal property, including family heirlooms, may be eligible for distribution according to intestate succession rules. These rules typically mean these items may become part of the general estate assets to be divided among eligible heirs. However, the rules around heirlooms can lead to difficult situations if multiple family members want the same items, which potentially requires family agreement or court intervention if disputes cannot be resolved amicably.
