Dying without a valid will is called dying intestate. If you die intestate, the New Brunswick Devolution of Estates Act (“the Act”) will decide what will happen to your estate and who will manage it.
Sometimes a person dies with a will, but the will does not cover all of their estate, or the will is partly invalid. This is called dying partially intestate. If you die partially intestate, the parts of your estate that are covered by the will are distributed based on your instructions in the will. But the parts of your estate that are not covered by the will are distributed based on the Devolution of Estates Act.
When someone dies intestate or partially intestate, usually their estate has to go to Probate Court in order to determine what will happen to it.
If you die intestate or partially intestate, the Probate Court will choose an administrator to manage your estate. Like an executor, the administrator is responsible for paying your debts and distributing your property after you die.
The administrator must distribute your estate according to the law in the Devolution of Estates Act (instead of according to your will). This is because administrators only administer the parts of your estate that aren’t included in a valid will.
If you die partially intestate, you executor will manage the parts of your estate covered by your will, and the administrator will cover the parts of your estate not covered by your will. The Probate Court can appoint your existing executor as the administrator, if it is appropriate to do so.
Where possible, the Probate Court prefers to appoint a close relative as your administrator, for example:
However, the Probate Court can appoint any person as an administrator, and not just the people listed above. This could include a child or grandchild, a close friend, a distant relative, or any other person that the Probate Court deems appropriate.
The Probate Court can appoint more than one administrator to manage your estate. If two or more people want to be administrators, then they must either submit a joint application or submit separate applications and then agree to be administrators together.
The person that the Probate Court appoints as the administrator of your estate may not be someone you would approve of.
As a last resort, Probate Court may appoint the Public Trustee as administrator, if there is no one else willing to be the administrator of your estate.
The role of the administrator is similar to an executor of a will. The administrator will take control of your estate and then:
Your estate must pay for your funeral and any debts owing. The administrator will then distribute what’s left in your estate according to the law in the Devolution of Estates Act.
To become the administrator of someone’s estate, you must apply for Letters of Administration from the Probate Court. More information about applying for Letters of Administration can be found in the Probate Court Act and the Probate Court Rules.
The application for Letters of Administration can be complicated. A wills and estates lawyer can help you prepare your application to avoid mistakes and delays.
The Probate Court charges a fee for a Grant of Letters of Administration. The fee is based on the value of your estate.
| Value of The Estate Being Administered | Fee for Grant of Letters of Administration |
|---|---|
| $5,000 or less | $25.00 |
| $5,000 to $10,000 | $50.00 |
| $10,000 to $15,000 | $75.00 |
| $15,000 to $20,000 | $100.00 |
| $20,000 or more | $5.00 per $1,000 of the estate being administered |
The Devolution of Estates Act determines what will happen to your estate, if you die intestate or partially intestate. If you die partially interstate, then the Devolution of Estates Act only applies to the parts of your estate that are not included in your will.
First, your estate must be used to pay your debts and any costs related to your death. This includes:
Funeral expenses
The costs of administering your estate,
Any debts you owe when you die.
Only what is remaining after your debts and expenses have been paid for will be distributed to your heirs.
The Devolution of Estates Act tries to distribute your estate the way that most people would choose to distribute it, but it may not be how you would have done it.
The Devolution of Estates Act will distribute your estate based on who your close family members are. For example, do you have a surviving spouse, children, parents, siblings, or grandchildren? The chart below shows how the Devolution of Estates Act will distribute your estate depending on your family.
| Family Members | What happens to your estate |
|---|---|
| A surviving spouse but no children or grandchildren. | Your estate will go to your surviving spouse. |
| A surviving spouse and one child. | The marital property will go to your surviving spouse. The rest of your estate will be divided equally between your surviving spouse and your child. |
| A surviving spouse and two or more children. | The marital property will go to your surviving spouse. The rest of your estate will be divided up: |
Generally, if someone who would have inherited your property under the Devolution of Estates Act has died before you, their children will receive their part of the estate.
Common law partners and stepchildren do not inherit anything under the Devolution of Estates Act. Only legally married spouses and biological or legally adopted children can inherit your property if you die intestate.
Generally, you must make a will if you want to leave any part of your estate to your common law partner or stepchildren.
However, your common law partner or stepchildren may be able to get part of your estate if they are financially dependent on you at the time of your death. Certain laws, like the Provision for Dependants Act, allow dependents to ask the New Brunswick Court of Kings Bench to order your estate to provide them with financial support. If the Court of Kings Bench agrees, then it will decide how much is owed to your dependents and order the Probate Court to take it from your estate. The rest of your estate will go to the beneficiaries listed under the Devolution of Estates Act.
If you are separated from your spouse but not legally divorced when you die, then your spouse is still considered your surviving spouse by the Devolution of Estates Act. Generally, they will inherit some or all of your estate as if you were not separated.
However, if you have been separated for a long time, some of your marital property may become part of your general estate instead. The rules may also change if you have a domestic contract, like a separation agreement. You should talk to a lawyer if you are separated when your spouse dies.