Dying Without a Will in Alberta – What Happens Next?

What if You Die Intestate in Alberta?

Anna Dunaeva DLegal Anna Dunaeva August 23, 2021
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What Happens If You Die Without a Will in Alberta?

When people pass without a valid Will in Alberta, they are called the intestate, and their estate goes to intestacy. As a result, statutory rules and the court decide who manages the deceased’s affairs, becomes the children’s guardian, and how to distribute the intestate estate.

For the most part, the statutory rules are pretty straightforward, and the judges try to take into account the personal situation of the deceased. Still, the rules are quite rigid, and the outcomes may not match your last wishes and can become unfair for your family. Dying without a will in Alberta is not ideal if you want your wishes to be respected after death. 

Who Gets Your Estate if You Pass Without a Will?

If you or your loved one ends up dying without a Will in Alberta, the Wills and Succession Act will make decisions for you and it will dictate who gets your intestate estate. The law is a governmental attempt to create a one-size-fits-all solution instead of personal estate planning. However, this can create significant complications for your loved ones because you have no say in dividing your estate. As a result, your estate may go to the wrong hands, or the distribution may not be the same as you expected.

Long story short, if you die without a Will leaving a spouse or adult interdependent partner, but no children, your spouse or adult interdependent partner gets your whole estate. An adult interdependent partner is a person who is in a relationship of interdependence with you. The relationship of interdependence exists if two people have lived together as an economic and domestic unit for at least three years, or less if there are children of the relationship. Alternatively, an adult interdependent partnership exists if two people have entered into an adult interdependent partnership agreement.

If a person dies without a Will in Alberta and has children with a spouse or adult interdependent partner, the surviving spouse or adult interdependent partner gets the whole estate. In this case, the law presumes that the deceased intended the spouse or adult interdependent partner to take care of the children. Quite often, the above rules are satisfactory for families if their situation is straightforward. Still, some people would prefer to leave a portion of their estate directly to their children.

If a deceased person has a spouse or adult interdependent partner, and children from another relationship, the law sets out a mechanism for determining their respective shares. Specifically, the surviving spouse or adult interdependent partner receives the greater of a preferential share or half of the intestate estate, and the children divide the rest equally. The preferential share of the surviving spouse or adult interdependent partner is prescribed for by the statutory rules and is currently $150,000. Many families would find this inoffensive. Still, some people would prefer to change the share of the spouse or partner in some way.

If a deceased leaves children but no spouse or adult interdependent partner, the children share the estate equally. If the children do not survive the deceased but have children of their own, the children of such deceased child split their parent’s share equally. In our experience, many people would prefer to exclude the grandchildren from the distribution or divide the estate unequally between the children.

What happens if you die without children, grandchildren, spouse, and adult interdependent partner, may surprise you. In this case, the rules of consanguinity will determine who inherits your property. Consanguinity roughly means “closeness by blood” and can be visualized as a table for simplicity. When we apply the table, we only go up to the fourth degree of consanguinity, excluding the rest. Also, we assume that all relatives of the same degree shall receive an equal share. So, suppose there is no spouse, adult interdependent partner, children, or grandchildren. In that case, the next in line to receive your intestate estate are, in order: your parents, siblings, nieces, grandnephews. The great-grandnephews will be excluded from the distribution because they fall beyond the fourth degree of consanguinity.

If none of your parents, siblings, nieces, or grandnephews survives you, we get back to the table of consanguinity up to the fourth degree to determine that your closest “next of kin” are your grandparents. Specifically, your paternal grandparents or their descendants (your aunts and uncles, or first cousins) will receive half of the estate, and your maternal grandparents or their descendants will receive the other half. Suppose you only have surviving relatives on either of the paternal or maternal grandparents’ side. In that case, the whole estate will go to them. The first cousins once, twice and thrice removed fall outside the fourth degree of consanguinity and will be excluded from the distribution. As a result, for example, a grandparent would take your estate in priority to an aunt or uncle, a parent prevails over a sibling, and all nieces and nephews are entitled to an equal share of an estate. Quite often, these rules seem unfair or impractical for clients as they don’t reflect the reality of most families.

If neither of your parents, siblings, nieces, grandnephews, grandparents, aunts, uncles, or first cousins survived you, your estate would go to, in order: great grandparents, great aunts and uncles, and then to great great grandparents. After that, if none of them has survived you, the intestate estate is called “escheat” and becomes the Crown’s property.

Who Manages an Intestate Estate When You Die Without a Will?

When you fail to name someone to administer your estate in your Will, the court has to appoint a personal representative. To become a personal representative, one needs to apply to the court for a Grant of Administration. Generally, your closest relative has priority to become your personal representative. When choosing a personal representative, judges rely on the Estate Administration Act.

After the judge approves the appointment, the personal representative gets the authority to manage and distribute the estate. When no relative or other related party can act as the personal representative of an estate for some reason, the government, through its Office of Public Trustee, will administer the intestate estate.

Failure to appoint a reliable personal representative in your Will creates problems for those you leave behind. First, because the court is not familiar with your situation, they may appoint someone who is not the the right fit for you from your perspective. Second, the court application and the administration of your estate may take years before your property gets to the proper beneficiaries. Finally, consider the expenses your significant ones will incur to settle the things after you and the stress they may need to go through.

Who Takes the Kids on Your Death?

No parent wants to think about it, and of course, this does not happen often. Still, what if you were to die suddenly without a will in Alberta?

If you die without a properly drafted Will, the other surviving parent will be the guardian of your minor children. If the other parent does not survive, a court will decide who takes care of your kids. Unfortunately, the judge does not know your preferences for the kids’ guardians and how you wanted to raise them. Also, it may be a time-consuming process because the government needs to find, screen, and approve the guardian.

A well-written Will should have a guardianship clause that appoints a guardian for your minor kids and provides for their maintenance beyond the necessities of life. The judges usually respect the deceased parent’s choices in a Will unless someone successfully challenges it or the judge chooses a different person because that would be in the child’s best interests.

Other Risks to Consider: Minors and Dependants

In your Will, you can dictate how to manage your kids’ property and how much to pay them and their guardians for maintenance. Also, you decide when your kids receive the inheritance.

Without a properly drafted Will, the court must appoint the other parent, guardian, or the Public Trustee to manage the minor’s share. If appointed, the other parent, guardian, or the Public Trustee will supervise the kids’ inheritance they find appropriate. This may or may not meet your expectations. Also, your kids will only receive basic necessities and no extras. Finally, the children will receive their whole inheritance at the age of majority, which may be too early for them.

A properly drafted Will is equally important if you leave disabled or spendthrift dependents. In a Will, you can establish a trust fund to pay for your dependent’s needs during their lifetime. When you leave no Will, there are limited tools to preserve the estate for their maintenance.

A properly drafted Will is a vital document for most of us, regardless of our financial situation. Wills are relatively inexpensive to have prepared by a lawyer. Dying without a Will, you do not have a say and let the government decide how to distribute your estate and care for your family. This adds complications and stress for many families, let alone additional expenses, time, and ruined relationships.

Please, take care of your significant ones and plan for the unexpected. If you require legal assistance with your wills and estates matters, DLegal estate planning lawyers are here for you! We have helped many Albertans get peace of mind and prepare for the future. Feel free to reach out to us by email, phone, or through the website so that we could streamline this for you!

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