Determining Heirs

Terminology

There are several overlapping terms used to refer to people who inherit from an estate:

• Heir: Usually someone who is related to the decedent, and would normally inherit from the estate even without a will.
• Devisee or Legatee: Someone specifically named in the will. Historically, a devisee inherited real estate, and a legatee inherited personal property (including cash).
• Beneficiary: General term for someone who will inherit from an estate, but also specifically used for asset classes (such as an RRSP) that bypass probate and go directly to the person named.

To keep things simple, EstateExec uses the common term "heir" when referring to anyone who will inherit from the estate, and additionally uses the term "beneficiary" when dealing with assets that automatically bypass probate.

If An Heir Has Died

If an heir died after the decedent, then that heir's estate simply inherits whatever that heir would have inherited.

If an heir died before the decedent, then the following rules generally apply in priority order:

1. If the will names an alternate recipient, then the alternate receives the inheritance instead.
2. If the recipient was not specifically named, but was instead simply part of a group (i.e., "my children"), then the remaining members of the group split the inheritance among themselves.
3. Some wills specifically state that any bequest to a pre-deceased person should instead become part of the residuary estate, and thus be distributed to the residuary heirs along with everything else.
4. Otherwise, the particular province's "anti-lapse" laws may apply if the intended heir was a lineal descendant of the decedent (or even just a sibling in some provinces), generally assigning the inheritance to the dead heir's relatives, in a particular priority order (as long as the will does not specifically exclude this). If you are uncertain as to who should inherit in this case, you may want to speak to an estate lawyer.
5. If none of the above conditions are met, then the property becomes part of the residuary estate, and is distributed to the residuary heirs along with everything else.
6. If there are no surviving residuary heirs, and the province's anti-lapse statute did not apply (perhaps because there were no qualified blood relatives of the deceased residuary heirs), then the residuary estate is distributed according to the province's laws of intestate succession (as if there were no will).

Missing Heir

If you cannot find someone who is supposed to inherit from the estate, you might try to track them down via Facebook, LinkedIn, or other social media. You might also enlist the help of other known relatives and acquaintances. Finally, you might consider hiring a professional heir search firm or a licensed private investigator. EstateExec does not recommend or endorse third-party services, but you might consider Heir Search .

If you simply cannot find an heir, you can usually place that heir's share in trust with the province. After a province-specific waiting period (measured in years), if the missing heir does not claim the inheritance, his own intestate heirs (see below) can claim it. If there is no one to claim it, the inheritance will escheat to the province, meaning that the province will keep it.

If There Is No Will

If there is no valid will, then the estate is considered intestate, and must be distributed according to provincial law in the decedent's legal province of residence. You don't necessarily need a lawyer in such cases, but one can provide reassurance that you are doing the right thing.

Generally, only spouses and blood relatives will inherit under such circumstances: unmarried partners and friends get nothing. Different provinces define these rules differently, but all give significant preference to a surviving spouse and direct children. If no spouse or children survive, then typically the children of the children inherit (i.e., the grandchildren). If no direct descendants exist at all, then inheritance typically reverts to the decedent's parents, siblings, grandparents, and other next of kin. If no relatives can be found at all, then the estate "escheats" to the province, meaning the government gets the property.

Note that if the estate owns real estate somewhere outside the decedent's legal province of residence, then that property must be inherited according to the laws that govern that external jurisdiction. Consequently, that portion of the estate may get allocated differently, or go to different heirs entirely.

Charitable Donations

An executor does not have the authority to make charitable donations unless explicitly authorized by the will. In cases where charitable donations are authorized, the executor should treat such donations similarly to all other bequests and distributions, subject to any specific instructions in the will. In essence, the charity becomes one of the "heirs".

Other Complicating Factors

In many provinces, if the decedent's will leaves anything to a spouse who the decedent divorced after making the will, those bequests will be automatically invalidated. Most provinces also have laws that bar an heir from receiving anything if he or she actually caused the death of the decedent. Some provinces bar adulterous spouses from inheriting, and other provinces bar people from inheriting anything from a child they abandoned. If you think there are extenuating circumstances for your estate, you should research the issue for the decedent's province, or ask a lawyer.