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About Wills and Why You Need One

Overview

What is a will and why do I need one?

A will is a legal document that directs who will manage (administer) your estate, who will be gifted your property after you die, and if applicable, your wishes as to who will be the guardian of your minor children. After a person's death, their assets (property owned by the deceased) and liabilities (debts or liabilities) make up their estate. A person's estate can include personal possessions and real property.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

Why should I make a will?

A will allows for important matters and your personal wishes to be followed after your death. This includes things such as the distribution of your property, as well as how your dependents will be cared for. Without a will or a properly drafted will, these matters may be determined by the court instead. This can lead to costly and lengthy court proceedings, and other issues such as family disputes over the distribution of your property.

If you do not make a will, you will have no say in who gets your estate property or who will manage your estate. Instead your property will be distributed in accordance with Saskatchewan legislation, called The Intestate Succession Act, 2019. Under this Act, people who you thought would get your property may get less or more than you wanted them to get. Or, they may get nothing.

You might think you do not need a will if you don't own a house, don't have much money, or don't care who gets your property. But it is much easier for your family and sometimes far less expensive to manage (administer) your estate if there is a will.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website and the Creating a Will Self-Help Kit for more information.

If I die without a will who gets my property?

Whether or not you have a will, any property that you own jointly with another with right of survivorship will go to the surviving joint owner. For example, if you own a family home or a bank account jointly with someone else, that property goes to the other person when you die. Also, any insurance proceeds or investments with a named beneficiary will go to that beneficiary.

All other property that is in your name will form part of your estate. According to the provisions of The Intestate Succession, 2019, after the payment of all taxes, debts and funeral expenses, and the settlement of any claims made against your estate by a dependent spouse or child (see information note below)1, then the remaining estate property is distributed as follows:

  • You had a spouse but no children and no other living descendants.

If at the time of your death you had a spouse (see the definition of spouse below) but no children or other surviving descendants (see definition of descendants), then the entire remaining estate goes to your surviving spouse.

A spouse means an individual to whom you are legally married, or to an individual who has lived with you for at least 24 months as a spouse. It is important to note that a spouse is not entitled to share in your estate at the time of your death if:

  • You had been living apart from your spouse for more than two years;
  • A family law proceeding between you and your spouse had been started and you and your spouse did not subsequently reconcile;
  • An order or agreement respecting your family property or marriage was made that appears to finalize and recognize the termination of the spousal relationship and you did not subsequently reconcile; or
  • Your spouse was living in a spousal relationship with another person.

A descendant means children and all of their children through all generations. Your descendants include your children, grandchildren, great grandchildren and so on. It includes legally adopted children.

  • You had a spouse and all your children were the also the children of your surviving spouse.

If all of your children were the also the children of your spouse, then the entire estate goes to your surviving spouse.

  • You had a spouse and at least one of your children were not also the children of your surviving spouse.

If any of your children was not the child of your spouse, then your entire remaining estate is to be distributed as follows:

  • The first $200,000 plus interest to your surviving spouse; and
  • The remainder of the estate, if any, to be divided between your spouse and children as follows:
    • If you had only one child, one half would go to your spouse and one half would go to your child; or
    • If you had more than one child, one third to go to your spouse and two thirds to be equally shared by your children. If any of your children predeceased you, that deceased child's share would then go to that child's descendants, if any.
  • You die without a spouse or without any children or surviving descendants.

If you die without a spouse or without any children or grandchildren, the estate will then go in the following order:

  • First to your parents
  • Next to your parent's descendants (e.g. your siblings or their children)
  • Next to your grandparents or their descendants (e.g. aunts and uncles and first cousins)
  • Next to your great grandparents and their descendants, and so on.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

INFORMATION NOTE: It is important to note that the distribution of your estate either under a will or The Intestate Succession Act, may be subject to claims by a dependant under The Dependant's Relief Act or a spouse under The Family Property Act.

If I die without a will who manages my estate?

A beneficiary or other interested person, usually the next of kin, may apply for Letters of Administration. Letters of Administration is an order by the Court that may grant the person applying the authority to deal with the property distribution of the deceased person.

The law sets out who has priority to apply for Letters of Administration – starting with the spouse, then children, then grandchildren, then parents, and so on. A person applying for Letters of Administration must have the approval of other persons who have greater or equal rights to apply. Up to three people may apply to jointly administer the estate. If there are no next of kin willing or able a creditor may apply, or the Public Guardian and Trustee.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

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