An estate is the property a person owned at the time of their death. However, as outlined below, there are certain types of property that do not form part of a deceased person’s estate.
Is there financial support for dependents from the estate?
The Dependants Relief Act protects family members of a deceased person who were substantially dependent upon them for support.
The court can be asked to make a maintenance order if the will does not provide enough support for dependent family members, or in cases where there is no will.
The deceased’s spouse, common-law partner, children, parents, grandparents, brothers, sisters or children to whom the deceased acted as a parent, and former spouses or common-law partners with maintenance orders or agreements, can claim support from the estate under the act.
To qualify as common-law partners under The Dependants Relief Act , a couple must either have registered their common-law relationship with the Vital Statistics Agency or they must have cohabited in a conjugal relationship, either for at least three years, or for one year if they have a child together. The court has the power to change the terms of a will to allow for support of the family members who were financially dependent on the deceased.
Adult children, parents, brothers, sisters, grandparents and grandchildren of a deceased person must be able to show that they were substantially dependent on that person for financial support. The Act allows people in financial need to apply for maintenance. It does not provide a way for financially independent family members who think they should have been left money or property by a deceased relative to ask the court for part of the estate.
The maintenance for dependent family members that a judge orders be paid from an estate may be in the form of regular (periodic) payments (such as monthly), a lump sum payment or a transfer of property.
What assets are outside an estate?
People can jointly own real estate (real property), such as their family home, in two different ways: as tenants-in-common or as joint tenants. The way property is owned affects what happens to it when one of the owners dies.
Most spouses own their family home as joint tenants. Many common-law partners do as well. If one owner (joint tenant) dies, the survivor automatically becomes the sole owner of the property. This occurs regardless of any provisions in a will. Certain documents must be filed with the local Land Titles Office to change the certificate of title for jointly-owned property from the names of both joint tenants to the name of the survivor.
Property can also be jointly owned as tenants-in-common. When property is owned this way, each owner (tenant-in-common) can state in a will what to do with their share. If an owner dies with no will, on death their share of the property becomes part of the estate and will be distributed according to law. Their share of the property does not automatically go to the other joint owner. A surviving spouse or common-law partner may still, however, have the right under The Homesteads Act to live in the family home for life. Visit the Rights on Death section of this website for more information.
Spouses or common-law partners may jointly own other assets, such as bank accounts or term deposits. As with a home owned as joint tenants, when one spouse or common-law partner dies, the survivor becomes the owner of the entire asset.
Most assets jointly owned by spouses or common-law partners automatically become the property of the survivor when one of them dies. As a result, the assets never form part of the deceased’s estate and so cannot be left to someone else through a will. Any provision in a will doing so is of no effect. A will can only direct who receives assets that form part of a deceased person’s estate.
Other Assets Outside an Estate
Another type of asset that often does not fall into an estate is death benefits under a life insurance policy. When benefits are payable to a named beneficiary, the benefits do not form part of the estate. Only if the beneficiary of the policy is the deceased person’s estate do the death benefits go to the estate and form part of the assets dealt with in the will.
Many people also sign designation of beneficiary forms naming beneficiaries for registered retirement savings plans (RRSP). Unlike wills, these designation of beneficiary forms are not automatically revoked or cancelled by a future marriage, divorce or common-law relationship. A lawyer should be consulted to determine if the will should provide how RRSPs are to be distributed.