Have you ever wondered what happens to a person's property when he or she passes away without having a valid Will? In the legal world, such a person is said to have died "intestate," and in Saskatchewan, his or her property will be distributed according to the rules set out in the recently-amended intestate succession legislation.

The Intestate Succession Act, 2019, SS 2019, c I-13.2 (the "New ISA") came into force on October 1, 2019, thereby repealing The Intestate Succession Act, 1996, SS 1996, c I-13.1 (the "Old ISA"). Therefore, the Old ISA's provisions no longer govern when a person dies intestate. This blog post summarizes the changes that were made in the New ISA.

Changes to the Substantive Provisions of the Legislation: General

Various rules under the intestate succession legislation in Saskatchewan have been modified with the passing of the New ISA.

>>We have created a summary chart comparing the Old ISA and the New ISA. It can be DOWNLOADED here.

Changes to the Substantive Provisions of the Legislation: Priority of Distribution

In addition to the above changes, arguably, the most notable difference between the two statutes has to do with the rules regarding how an intestate's property will be distributed to beneficiaries, including to whom the property will be given and what the priority of the interests will be. The below list contains the various scenarios that are covered under the New ISA and what happens to the estate property in those circumstances.

Where the intestate dies leaving...

  1. a spouse and one or more descendants (all of which are children of both the intestate and the spouse), the entire estate goes to the spouse (s. 5 of the New ISA).

  1. a spouse and one or more descendants (at least one of which are not children of both the intestate and the spouse) and the net value of the estate is less than $200,000, the entire estate goes to the spouse (s. 6(1)(a) of the New ISA and s. 3(1) of the ISA Regs)

  1. a spouse and one or more descendants (at least one of which are not children of both the intestate and the spouse) and the net value of the estate is greater than $200,000:

    • the spouse is entitled to his or her preferential share of the estate (plus interest from the date of death), which is the greater of $200,000 or one-half of the value of the estate (s. 6(1)(b)(i) of the New ISA and s. 3(2) of the ISA Regs); and

    • the remainder of the estate will be distributed as follows:

      • where there is one child, one-half of the remainder will go to the spouse and one-half will go to the child per stirpes (s. 6(1)(b)(ii)(A) and s. 7 of the New ISA).

      • where there is more than one child, one-third of the remainder will go to the spouse and two-thirds will be distributed evenly between the children per stirpes (s. 6(1)(b)(ii)(B) and s. 7 of the New ISA).

  1. a spouse but no descendants, the entire estate goes to the spouse (s. 4 of the New ISA).

  1. no spouse and no descendants, the estate goes to the intestate's surviving parent(s) (s. 8(1) of the New ISA).

  1. no spouse, no descendants, and no parents, the estate goes to the intestate's parent's descendants per stirpes (s.8(2) of the New ISA).

  1. no parents or parent's descendants (e.g., the intestate's siblings, nieces, nephews, etc.), the estate goes to the intestate's grandparents per stirpes (s. 9 of the New ISA).

  1. no grandparents or grandparent's descendants (e.g., the intestate's aunts, uncles, first cousins, etc.), the estate goes to the intestate's great-grandparents per stirpes (s. 10 of the New ISA).

For those that are not familiar with the term "per stirpes," it merely means that where a person would normally be entitled to a portion of the intestate's estate, but the person passed away before the intestate, the person's descendants will equally split the portion that the person was entitled to.

Some notable changes regarding the priority of distribution include the following:

  • The rule where a spouse gets the entire estate when all the children of the intestate are also children of the spouse (see point (1)) is brand new; under the Old ISA, assuming the estate was worth more than the listed amount, such a spouse would only be entitled to a portion of the estate rather than the entire estate.

  • The "preferential share" that a spouse may be entitled to has been increased from $100,000 to the greater of $200,000 or one-half of the value of the estate (see point (3)). However, the amount of the preferential share is now located in the ISA Regs rather than directly in the New ISA, and therefore, this amount can be adjusted by the Legislature more easily in the future.

  • Where the intestate dies with no spouse or descendants, the estate goes to the intestate's surviving parent but it is not distributed per stirpes (see point (5)). This effectively means, for example, where an intestate dies leaving no spouse or children, but he does have a living mother and brother, the entire estate will go to the mother; the brother will not be entitled to any portion of the estate even though the father of both the intestate and his brother would have been entitled to a portion if he were living.

Changes to the Numbering of Provisions in the Legislation

There are also a few provisions from the Old ISA that made their way into the New ISA, but simply under a different number:

  1. The "posthumous births" rule remains the same, but it was moved to s. 12 in the New ISA.

  1. The "partial intestacy" rule remains the same, but it was moved to s. 13 in the New ISA.

  1. The "no dower or courtesy" rule remains the same, but it was moved to s. 14 in the New ISA.  

All other rules under the intestate succession legislation remain the same.

The above summary discusses only the portions of the intestate succession legislation that have changed, but it does, in fact, cover most of the material in the New ISA. Therefore, if you do not have a Will, this summary includes most of the rules that will govern how your property will be distributed when you die. However, if you do not wish for your property to be distributed in such a way, you can specify your exact wishes in a Last Will and Testament. Should you wish to have a Will drafted for you, or if you would like some advice on the applicability of the New ISA, please do not hesitate to reach out to one of our estate lawyers for assistance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.