What Happens When You Die Without a Will in Alberta?

A properly drafted will is essential to any estate plan, ensuring that your assets are distributed according to your wishes. However, many Albertans pass away without one, leaving their loved ones to navigate a complex legal process.

Dying without a will, known as dying intestate, means that the distribution of your estate will be determined by Alberta’s Wills and Succession Act rather than your personal preferences. This can lead to unintended outcomes, family disputes, and unnecessary stress for your surviving relatives.

The Role of the Wills and Succession Act

In Alberta, the Wills and Succession Act governs how an estate is distributed when a person dies intestate. This legislation sets out a default distribution scheme that prioritizes close family members, such as a surviving spouse or adult interdependent partner, children, and other next of kin. While the Act aims to distribute an estate fairly, it does not account for personal relationships, financial needs, or the specific wishes the deceased may have had.

Per Part 3 of the Wills and Succession Act, if an individual dies without a will, the most common forms of division are as follows:

Surviving Spouse or Partner, No Children

If the deceased had a spouse or adult interdependent partner but no children, the entire estate goes to the surviving spouse/partner.

Surviving Spouse or Partner, With Children

If there is a spouse/adult interdependent partner and children, the distribution depends on whether the children are from that relationship or a previous one:

• If all children are from the surviving spouse, the spouse/partner inherits the entire estate.
• However, if there are children from a different relationship, the spouse/partner receives either 50% of the estate’s net value or $150,000 (whichever is greater), with the residue of the estate being divided among the deceased’s descendants.

No Surviving Spouse, With Children

If there is no surviving spouse or interdependent partner but children, the entire estate is divided equally among them.

No Surviving Spouse, No Children

If there is no spouse and no children, the estate is distributed to the deceased’s next closest relatives in a specific order: parents, then siblings, then nieces and nephews, and so on.

No Eligible Heirs

In cases where no eligible heirs can be found, the estate ultimately escheats to the Crown, meaning the Alberta government receives the assets.

The Challenges of Dying Intestate

Dying without a will can create numerous legal and emotional challenges for surviving family members and those who may have expected to receive assets from the estate.

Appointing an Estate Administrator

One of the most significant complications is the appointment of an estate administrator. When a person has a valid will, they typically name an executor who is responsible for managing the estate. Without a will, a family member or other interested party must apply to the court to be appointed as the estate administrator. This process can take time, lead to disputes, and create additional financial burdens.

Complex Family Dynamics

Another significant issue is the potential for family conflict. The default intestacy rules do not account for unique family circumstances, blended families, or estranged relationships. If multiple people believe they have a claim to the estate, disagreements can arise, leading to costly and time-consuming legal battles.

Special & Charitable Bequests

Further, the intestacy laws do not accommodate special bequests. If the deceased wished to leave specific assets to a friend, charitable organization, or non-traditional family member, these wishes would not be honoured without a legally binding will. This can result in disappointment and frustration for those expecting to receive an inheritance or gift from the deceased.

Guardianship for Minor Children

The absence of a will creates additional complications for individuals with minor children. A will allows parents to designate a guardian for their children in the event of their passing. Although this designation is not legally binding in and of itself (the court must always review the situation and prioritize the best interests of the child), dying intestate can leave the court with no way to determine the deceased parent’s wishes. Ultimately, the court’s decision may not align with what the deceased parent would have wanted. Family members may also contest guardianship, leading to prolonged legal disputes.

Business Succession

Business owners also face unique risks when they die without a will. If the deceased was the sole owner of a business, the lack of a clear succession plan can lead to uncertainty about who will take over operations, potentially jeopardizing the company’s stability. Partners or co-owners may also be left without clear guidance, leading to disputes or even the forced sale of the business.

How to Avoid Intestacy in Alberta

Proactive estate planning is crucial, given the challenges and uncertainties that arise when someone dies without a will. A properly drafted will ensures your assets are distributed in accordance with your wishes rather than the default rules set out by Alberta’s laws. It also allows you to appoint a trusted executor to manage your estate, designate guardians for minor children, and make provisions for loved ones who may not be included under the Wills and Succession Act.

In addition to creating a will, individuals should also consider powers of attorney and personal directives. A power of attorney allows you to appoint someone to manage your financial affairs if you become incapacitated, while a personal directive outlines your medical and personal care preferences. These documents ensure your affairs are handled according to your wishes, even before death.

DBB Law: Providing Comprehensive Estate Planning Services in Calgary

Dying without a will in Alberta can create significant legal and emotional burdens for surviving family members. Without clear instructions, your estate will be distributed according to rigid provincial laws that may not reflect your personal relationships or financial intentions. The knowledgeable estate lawyers at DBB Law help clients avoid these challenges by creating robust, thorough estate plans. We guide you through the process, ensuring your assets are protected and your loved ones are provided for.

From its office in the heart of downtown Calgary, DBB Law provides innovative legal solutions across Alberta in a broad range of practice areas, including business and commercial law, civil litigation, construction law, family law, labour and employment law, real estate and property law, tax law, and wills, estates, and trust matters. To book a confidential consultation, please contact us online or call 403-265-7777.