What Happens if you Die without a Will? Who gets your Property?
Neufeld Legal P.C. can be reached by telephone at 403-400-4092 or email Chris@NeufeldLegal.com
Should you die without a legally valid will, also known as dying "intestate," you will have no say in how the assets of your estate are distributed upon your death. Instead, the laws of your particular jurisdiction, which in Alberta is the Wills & Succession Act, will determine who will administer your estate and who will inherit your property, which might not align with your personal wishes.
A. No Appointed Executor/Administrator:
Without a will, you haven't named an executor. The executor is responsible for managing your estate, paying debts, and distributing assets.
Someone will need to apply to the Court to be appointed as the Administrator (or personal representative) of your estate. This process can be time-consuming and add stress to your loved ones. The court will follow a specific order of priority for who can apply, usually starting with a spouse or adult children.
B. Distribution of Assets by Law:
Each jurisdiction (province) has its own "intestacy laws", which in Alberta is the Wills & Succession Act, that determines how your estate is distributed. These laws are rigid and don't consider your personal relationships or intentions.
The jurisdiction’s intestacy laws will establish a pattern for distributing the assets of the estate, which in the Province of Alberta would proceed according to the following specifications from the Wills & Succession Act:
1. Surviving Spouse or Adult Interdependent Partner (AIP) and Descendants:
If all descendants are also descendants of the surviving spouse/adult interdependent partner: The entire estate goes to the surviving spouse/adult interdependent partner. This is a common scenario where the deceased and their partner have children together.
If any descendants are not descendants of the surviving spouse/adult interdependent partner (e.g., children from a previous relationship): The surviving spouse/adult interdependent partner receives the greater of:
i. The prescribed amount (currently $150,000 as of 2024); or
ii. 50% of the net value of the intestate estate.
The remaining portion of the estate is then distributed among the intestate's descendants (children, grandchildren, etc.) per stirpes. In Alberta, an Adult Interdependent Partner is the legal status arising from a committed, marriage-like relationship between two people who are not married to each other, replacing the more traditional concept of "common-law spouse" and is defined in the Adult Interdependent Relationships Act.
2. Both a Spouse and an Adult Interdependent Partner:
If there are descendants: The spouse and the adult interdependent partner each receive half of the share they would have received if they were the sole partner (as calculated in the scenarios above).
If there are no descendants: The estate is split equally between the spouse and the adult interdependent partner.
3. Descendants Only (No Surviving Spouse or Adult Interdependent Partner):
The entire estate is divided equally among the deceased's descendants per stirpes.
Per Stirpes means the estate is divided into as many shares as there are living children and deceased children who have living descendants. Each living child receives one share. The share of a deceased child is then divided among their own descendants (the grandchildren of the deceased) in the same manner.
4. No Surviving Spouse, Adult Interdependent Partner, or Descendants:
The estate is distributed to the deceased's next closest relatives in a specific order:
i. Parents: In equal shares if both are alive, or all to the surviving parent.
ii. Descendants of Parents (Siblings, Nieces, Nephews): If no surviving parents, the estate goes to the deceased's siblings in equal shares. If a sibling is deceased but has living descendants, their share is divided among their descendants (nieces and nephews) per stirpes.
iii. Grandparents or their Descendants (Aunts, Uncles, Cousins): If no siblings or their descendants, the estate goes to the grandparents or their descendants.
iv. Great-Grandparents or their Descendants: If no grandparents or their descendants.
Important Considerations:
No Heirs: If no identifiable heirs can be found according to the Wills and Succession Act, the estate ultimately falls under the jurisdiction of the Unclaimed Personal Property and Vested Property Act and may transfer permanently to the government after a period of time.
Separation: If a spouse or adult interdependent partner had been separated from the deceased for two years or more before the death, or if a court order has officially recognized the end of the relationship, they may be disinherited.
Dependents: Even if the distribution rules don't provide adequate support, dependent family members (spouse, adult interdependent partner, minor children, adult children with disabilities, or adult children under 22 in full-time education being supported by the deceased) can apply to the court for greater provision from the estate under the Family Maintenance and Support provisions of the Act.
Family Home: A surviving spouse or adult interdependent partner has the right to occupy the family home for 90 days after the date of death, with the estate covering associated expenses.
C. Potential Complications and Unintended Consequences:
Common-Law Partners: In other jurisdictions, common-law partners may not automatically inherit from an intestate estate, even if they've been together for many years. They may have to make a claim against the estate, which can be a complex legal process.
Blended Families: If you have step-children, they generally won't inherit unless you have legally adopted them.
Specific Gifts: You can't leave specific gifts to friends, charities, or other individuals or organizations you care about.
Guardianship of Minor Children: Without a will, you can't designate a guardian for your minor children. The Court will make this decision based on what it deems to be in the children's best interests, which might not be who you would have chosen.
Increased Costs and Delays: The process of administering an intestate estate can be more complex, time-consuming, and costly due to Court applications, legal fees, and potential disputes among family members.
Tax Implications: You lose opportunities for tax planning that a will can provide.
Funeral Wishes: Your family may not know your preferences for your funeral or burial.
D. General Implications of Dying without a Will:
i. Loss of control: You have no say in how your assets are distributed.
ii. Legal complexities: Your estate will be subject to the exceedingly strict laws of the applicable jurisdiction.
iii. Heightened potential for disputes: Family members may disagree on how assets should be handled.
iv. Increased stress and burden on your loved ones: They'll have to navigate the legal process without your guidance.
Given these implications of dying intestacy, you can fully appreciate the importance of having a valid will prior to your own death, which you cannot control. And for that very reason, it is strongly recommended that you don’t delay in preparing and executing a valid will.
Contact our law firm today to learn how our legal team can help you plan for the future, with the preparation of key estate planning documents, from one's will, power of attorney and personal directive, to more complex aspects, involving trusts and business succession planning. Contact our law firm at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
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IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.