October 18, 2023

Death Without a Will: What Happens to the Property?

Losing a loved one is hard. Losing a loved one without a will is a situation that no one wants to experience. A death without a will raises many questions, including what happens to the property. By consulting the right experts, you can ensure that matters will be handled properly: a notary can be used to settle an estate with or without a will, while a real estate broker can help with the estate sale.

Who inherits?

The first thing to do after a death is to determine who are the legal heirs. Yet, who is considered a legal heir in the eyes of the law? Family members such as a spouse, children, or close relatives are considered legal heirs. But that’s not all.

Married or in a civil union?

  • Was the person married or in a civil union? Is the spouse still alive?
  • Is there a marriage or civil union contract?
  • Does the contract contain a “surviving spouse” clause?

If the spouse is still alive, but this clause is not in the contract, the inheritance will then be shared between the spouse and the children (or closest relatives) of the deceased: one third for the spouse and two thirds for the children. If the deceased has no children, it will be two thirds for the spouse and one third for close relatives.

If this testamentary clause is included in the contract, the property will be left to the spouse who then becomes the sole legal heir.

If the deceased person does not have a spouse, the inheritance goes to the children or closest relatives (brother, sister, father, mother, etc.).

Common-law partners 

A common-law partner is not considered a legal heir, regardless of the number of years they have lived together as a couple. The partner has to be specifically mentioned in a will to be legally considered an heir.

If one of the common-law partners dies without a will and has children, they will receive the entire inheritance in equal shares. No children? The estate will then be divided: half to the parents of the deceased, the other half to any brothers or sisters.

Note that there is no difference between adopted children and those from another union (de facto, marriage or civil), all will inherit equally.

The inventory of property… and debts

Before being able to distribute the inheritance among the legal heirs, the liquidator must first make an inventory of the property and debts. Of course, immovable property such as a house must be included in this inventory.

Any mortgage of the deceased must also be included in the inventory of debts.  The liquidator will need to determine the value of the property. Consult a real estate broker or chartered appraiser to help you through this process.

A lengthy process

The estate liquidation process can take time. Make sure the property continues to be insured and that necessary or urgent maintenance and repairs be done.

Settling an estate is a complex process. The pain of losing someone and all that comes with it can be a heavy task. Working with experts ensures that things are done right: use a notary to help settle the estate (with or without a will), while a real estate broker can help with selling the estate.

See also:

 What are title deeds and title insurance?

Buying a house with your common-law partner

Notary fees for buying a home

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