Will - Updating Will - Invalid or No Will - Power of Attorney - Personal Directive
No Will - Intervention of Public Guardian + Trustee
There can be some very serious, and unwanted, consequences that arise from dying without a valid will, which demands your immediate attention.
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
When you die without a valid will (intestate), you are effectively surrendering your decision-making powers to a rigid statutory arrangement (the Wills and Succession Act (Alberta)), which most often conflicts with your personal intentions for the well-being of minor children and/or mentally incompetent adults. In those circumstances, the law mandates the involvement of the Office of the Public Guardian and Trustee (OPGT), as the law seeks to protect those vulnerable persons (minor children and mentally incompetent adults). Consequently, you lose the ability to make private, flexible decisions regarding how and when that individual receives their inheritance (as well as who manages and oversees it).
The involvement of the Public Guardian and Trustee typically leads to a significant loss of autonomy over the timing and nature of asset distribution. Under Alberta’s intestacy rules, a minor’s share must generally be paid into court or held by the OPGT until the child reaches the age of 18, at which point they receive the entire lump sum. If you had a valid will, you could instead appoint a trusted family member as a trustee and stipulate that the child receives their inheritance in stages (i.e., at ages 21, 25, and 30) and under specific circumstances. Without a will, the government dictates the schedule, and once that minor hits the age of majority, the OPGT releases the funds regardless of the individual’s financial maturity or readiness.
Furthermore, the financial impact of the OPGT’s involvement can be substantial, as their services are not provided for free. The Public Guardian and Trustee charges various fees for the administration, investment, and protection of the minor’s or incompetent person’s assets, which are deducted directly from the beneficiary’s inheritance. These "additional costs" can erode the total value of the estate over time, leaving the successor with less than you originally intended. By contrast, a valid will allows you to structure a Henson Trust or a discretionary testamentary trust, which can be managed by a friend or relative for a lower cost or even on a volunteer basis. This proactive planning ensures that more of your hard-earned wealth remains in the hands of your loved ones rather than being consumed by administrative levies.
For mentally incompetent successors, the risks of intestacy are even more profound regarding their ongoing eligibility for government benefits. In Alberta, receiving a direct lump-sum inheritance through intestacy might disqualify a person from programs like Assured Income for the Severely Handicapped (AISH) because they suddenly exceed the permitted asset limits. A valid will could have prevented this by including specific absolute discretionary clauses that allow the trustee to provide for the beneficiary’s comfort without the inheritance counting as a personal asset. Without these protections, the OPGT may be forced to manage the funds in a way that prioritizes legal compliance over the successor’s long-term access to provincial support systems, potentially leaving the individual in a worse financial position [more on AISH and Henson Trusts].
Avoid putting your loved ones in the difficult situation of attempting to settle and administer your estate without a valid will, by putting in place the necessary estate planning documents when you are alive and capable. Contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
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.
Contact Info - Mobile Services - Hospital Visits - Legal Notices - Privacy - Terms of Use - Main Will Webpage