295 DYING WITHOUT A WILL IN ALBERTA
The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer through our lawyer referral service line.
This topic will discuss what happens to your estate if you die without a will. A will is a document that says how you wish property to be divided after your death.
If you die without a will, you are said to die intestate. Two immediate problems arise:
- Because there is no personal representative appointed, there is no one to take charge of the handling of your estate.
- There is no formal written record of what you wanted done with your estate.
In Alberta, if you die without a will or if you leave property that is not disposed of by will, the Wills and Succession Act determines what will happen to your property.
Spouse or Adult Interdependent Partnership
If you are married or in an adult interdependent partnership and you have children who are also the children of your surviving spouse or adult interdependent partner, your spouse or adult interdependent partner is entitled to receive your entire estate.
If you are married or in an adult interdependent partnership and you have children who are not also the children or your surviving spouse or adult interdependent partner, your surviving spouse or adult interdependent partner will be entitled to receive either 50% of your estate or an amount set out in the Act at the same time of your death, whichever amount is greater. Your children are entitled to share the balance of your estate equally.
If any of your children died before you, but left children (your grandchildren) who survive you, those grandchildren are entitled to share the portion of your estate which your child would have received if he or she was alive.
If you die leaving children but no spouse, then everything is divided equally among your children. If any of your children died before you, but left children (your grandchildren) who survive you, are entitled to share the portion of your estate which your child would have received if he or she was alive.
If you leave no spouse or children or descendants, your estate goes to your nearest kin, in the following order: to your parents in equal shares, or to your surviving parent; if both of your parents are dead, then to your brothers and sisters in equal shares. The children of their deceased brother and sisters inherit their parent’s share. If you have no surviving nieces or nephews, then your estate would be left to your next of kin according to different degrees of blood relationships. For example, your estate would pass first to your grandparents. If your grandparents have died before you, your estate will be divided equally among your surviving aunts and uncles. If you do not have surviving aunts and uncles, your estate will be divided among your cousins. If you do not leave any traceable next of kin, your estate goes to the provincial government and is used for universities to provide funding for scholarships or fields of research.
The Wills and Succession Act does not consider the needs of each particular family and some unfair situations may result.
Public Trustee of Alberta
A surviving parent may go through needless inconvenience when the other parent dies without a will. For example, where part of the deceased’s estate is to go to the children and the children are under 18 years of age; their share may be held in trust for them by the Public Trustee of Alberta.
As a result, a parent or guardian with small children may only be allowed to use that money if he or she applies to the Public Trustee each time she needs money to buy something for the children. The Public Trustee invests the money held in trust, and charges an administrative fee for acting as trustee for the children.
When the surviving spouse is elderly and the children of the deceased are adults who are able to earn a living, it may be the case that the surviving spouse needs the inheritance more than the adult children do. However, without a will, the estate will not necessarily pass entirely to the surviving spouse. This problem could be avoided by making a will which would leave the entire estate to the surviving spouse.
If you do not have any traceable relatives, you probably still wish to decide what happens to your estate when you die. You may prefer to leave your estate to a charitable organization or a friend rather than to the provincial government. You can state your preference in a will. If you leave any portion of your estate to a charitable organization, your estate will receive a tax benefit as a result of the donation.
Dower rights protect the spouse of the registered owner of real property (house or land). The Dower Act requires the spouse who is not on title to consent to any disposition of land. A disposition of land usually comes up as the sale or mortgaging the property.
The surviving spouse is allowed to occupy the dwelling house during his or her lifetime, or can rent the land and receive the income. This is the case regardless of the terms of the will or the provisions of the Wills and Succession Act.
When do Dower Rights Apply?
The test for dower rights is straight forward. The main considerations are:
- Title is in one person’s name. If a property is co-owned, then the dower rights will not apply.
- The person on title is married. Common law relationships do not have the same protection.
- Dower requires that either person has lived in the property since the time of their marriage.
Dependant Family Members
If you die without a will and the share going to your dependent family members under the Wills and Succession Act is not enough for their proper maintenance and support, your dependent family members may apply to the court for more money. The judge, in such cases may make changes as he or she sees fit.
According to the Family Maintenance and Support provisions of the Wills and Succession Act, dependent family members include:
- your spouse or adult interdependent partner,
- children under the age of 18, and
- children over the age of 18 who are unable to earn a living due to a mental or physical disability.
These provisions also apply where a will is made but does not make adequate provision for dependent family members. If you leave a will, you can specifically address the individual needs of your spouse and minor or disabled children. You can also state your reasons for not leaving a larger portion of your estate to certain of your family members. For example, if you and your spouse have signed a prenuptial agreement in which you agree to keep your finances separate, you may wish to make reference to that agreement in your will.
Making a will avoids much confusion. Make an appointment with a lawyer to discuss your specific concerns.
Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.