Federal vs. Provincial Jurisdiction in Canadian Estates: Who Actually Runs This Show?

“Canada is a federation” — which is law-professor speak for “two parents, one estate file, 10,000 opinions.”

Imagine Aunt Moira passes away owning: a condo in Vancouver, a lakeside cabin in Quebec, a fat RRSP, and a suspiciously fancy ceramic moose collection. You, the lucky executor, must now navigate two levels of government that both swear they’re in charge — but of different things. Welcome to the constitutional soap opera behind Canadian estate planning.

This is the precise moment the phrase “federal vs. provincial jurisdiction” turns from a civics-class yawn into “please, someone hand me a flowchart.” Good news: here’s your flowchart. And some jokes so you don’t cry.

The Constitutional Split: The Map Behind the Madness

Canada’s powers are divided by the Constitution Act, 1867. Translation: Ottawa and the provinces each got their own toy box.

• Federal powers: section 91 — includes taxation (s. 91(3)), banking (s. 91(15)), bankruptcy and insolvency (s. 91(21)), and “Indians, and Lands reserved for the Indians” (s. 91(24)).
• Provincial powers: section 92 — includes property and civil rights (s. 92(13)), administration of justice (s. 92(14)), direct taxation in the province (s. 92(2)), and local matters (s. 92(16)).

In estate land, the killer phrase is property and civil rights. That’s the provinces’ turf. They run wills, probate, succession rules, and most of the drama when families fight over the moose.

Quick vibe check: Provinces run the “who gets what and how,” while the feds run the “how it’s taxed and a few big carve‑outs.”

What Provinces Control (aka: The Will, The Probate, The Chaos)

Provinces and territories govern the legal mechanics of death and inheritance. Expect different statutes, different forms, and different court names — the legal equivalent of every province having its own version of poutine.

Core provincial buckets

• Formal validity of wills: Who can sign, who can witness, what counts as a valid holograph will, and when courts can fix mistakes.

  • Ontario: Succession Law Reform Act; naming an estate trustee; substantial compliance since 2022 amendments.
  • BC: Wills, Estates and Succession Act (WESA) — famously flexible with “curative” powers.
  • Quebec (Civil Code): notarial wills, holograph wills, and wills in the presence of witnesses with civil law twists (and notaries are VIPs).

• Intestacy rules: Who inherits when there’s no will (spouse thresholds, shares for kids, etc.). Spoiler: rules vary widely.

• Family provision/variation:

  • BC’s WESA allows will variation if a will doesn’t make “adequate, just and equitable” provision for spouse/children.
  • Other provinces offer “dependants’ relief” for those financially dependent on the deceased (not carte blanche for adult children with vibes).

• Probate/estate administration: Which court grants probate, what forms exist, small-estate procedures, resealing out-of-province grants.

  • Ontario’s “Estate Administration Tax” (probate fee) is provincial; after Re Eurig Estate, it must be properly legislated as a tax.

• Beneficiary designations for insurance, RRSPs, TFSAs: formal validity and revocation rules by will are generally provincial (but tax on the transfer is federal — more below).

• Trustee duties and remedies: fiduciary obligations, passing of accounts, and remedies for “Oops, I maybe sold the cottage to my cousin for $1.”

• Courts: Provincial superior courts handle estates. The Federal Court of Canada does not do probate. If you file probate there, you will meet a jurisdictional nope.

What the Federal Government Controls (aka: The Tax Boss and Special Files)

Federal power shows up like a plot twist: you thought it was all provincial…and then the CRA walks in with a folder.

Taxes at death (Income Tax Act)

• Deemed disposition: On death, most capital property is deemed sold at fair market value (ITA s. 70(5)). Gain = taxable. Cue appraisals.
• Rollovers: Deferral to a spouse or common-law partner (and certain qualifying trusts), and special rules for dependent children with disabilities.
• Registered plans: RRSPs/RRIFs/TFSA taxation is federal. You can often designate a spouse or financially dependent child/grandchild for favorable treatment.
• Returns: The estate may be a Graduated Rate Estate (GRE) for up to 36 months after death — a sweet spot for tax planning. There may be multiple returns (final T1, “rights or things,” T3 for the estate).

Pensions and benefits

• CPP death benefit and survivor’s pensions: federally administered; taxable treatment governed by federal rules.
• OAS/GIS: recovery and reporting are federal issues even as the estate’s distribution is provincial.

Bankruptcy and insolvency

• Bankruptcy and Insolvency Act: If the deceased was bankrupt, federal priorities and exemptions overlay the provincial estate scene.

Indigenous estates

• Under the Indian Act, wills and estates of individuals “ordinarily resident on reserve” can fall under federal jurisdiction. The Minister (or delegate) may approve wills, appoint administrators, and apply federal regulations — a critical carve‑out from the provincial norm.

Bottom line: Provinces choreograph “who gets what.” Ottawa sets the tax soundtrack, pensions percussion, and runs special stages (bankruptcy, Indian Act). Different DJs, same party.

When Worlds Collide: Interprovincial and Quebec Mixes

The second most Canadian sentence you’ll hear: “It depends where the property is.”

• Immovable (real estate) law: Governed by the law where the property sits (lex situs). Your BC condo follows BC law; your Quebec chalet follows Quebec civil law.
• Movables (most personal property): Often governed by the law of the deceased’s domicile at death (with local twists). Provinces also have statutes recognizing wills valid where made or where the person was domiciled.
• Resealing: A probate grant from one common-law province can often be resealed in another. Quebec, as a civil law jurisdiction, uses its own recognition processes rather than the classic “reseal.”

Example: Aunt Moira dies domiciled in Ontario, with land in BC and Quebec. Expect:

• Ontario: main probate; GRE setup for tax.
• BC: possible reseal for the condo title.
• Quebec: civil law steps for the chalet (and likely a notarial dance).

Spot-the-Jurisdiction: A Handy Table

Memorize this? Nah. But keep the vibe: “Who gets it?” = province. “How taxed?” = feds.

Common Misconceptions (a.k.a. Estate Myths We Need to Retire)

• “The Federal Court can grant probate.”

  • False. Probate is a provincial superior court function.

• “Beneficiary designations are a federal thing.”

  • Mixed. The designation’s form and revocation are provincial; the tax result is federal.

• “All provinces treat adult children the same.”

  • Not even close. BC can vary wills for adult children; many others focus on financial dependency.

• “Probate fees are federal.”

  • Nope. They’re provincial (direct taxes within the province). Names vary: “Estate Administration Tax,” “probate fee,” “court fee with a personality.”

Mini-Checklist: Planning Across Jurisdictions

If person has assets in multiple provinces:
1) Identify domicile (for movable property rules).
2) List real estate by province (real property = local law).
3) Confirm will formalities recognized in each province (consider multiple wills if appropriate).
4) Check beneficiary designations (RRSP/RRIF/TFSA/insurance) vs provincial revocation rules.
5) Model federal tax at death (deemed disposition; GRE elections; rollovers).
6) If Indigenous person ordinarily resident on reserve: review Indian Act regime.
7) Anticipate resealing/ancillary processes and local counsel needs.

Real-World Snapshots

• The “Two-Will Strategy” in some provinces: Separate wills for private company shares vs. other assets to manage probate exposure. Validity and effect? Provincial. But watch the federal tax picture for post-mortem rollouts and pipeline planning.

• Quebec twist: A notarial will in Quebec can skip probate there. But the Ontario bank may still want proof of authority for assets held in Ontario. Paperwork migrates; beverages recommended.

• RRSP to spouse named directly as beneficiary: Provincial law says the designation stands; federal law says the value is income to the deceased unless a rollover applies. Moral: One signature, two jurisdictions, three potential headaches.

Why People Keep Misunderstanding This (and How to Not)

Because both levels of government touch the same property at different times for different reasons. It feels like two overlords; it’s actually a tag team.

• The province decides whether your will is valid, who your executor is, and how feuds get settled.
• The feds decide how much of that value gets taxed and when.
• Both can be right at the same time about different slices. It’s not duplication; it’s distribution.

Think of it like a wedding: the province issues the marriage license (structure), the feds manage your taxes (consequences), and you manage expectations (therapy not included).

Key Takeaways

• Provinces own the field of wills, probate, intestacy, dependants’ relief, and trustee law — the “who and how.”
• Ottawa dominates taxation, pensions/benefits, bankruptcy overlays, and Indigenous estate regimes — the “how much and under what special rules.”
• Real estate follows the law where it sits; personal property often follows domicile; Quebec plays by civil law rules with notaries in the spotlight.
• If assets live in multiple provinces, expect resealing or recognition procedures. Build this into timelines.
• Beneficiary designations are a jurisdictional mashup: provincial form, federal tax bite.

Parting Thought

Estates are about love, law, and logistics. The love is yours. The law is split. The logistics are…why planners get paid.

Make friends with both jurisdictions early, and your future self (and Aunt Moira’s moose) will thank you.