If you die without a Will, you are said to die “intestate”. Two immediate problems arise:
- as there is no Personal Representative (formerly known as Executor/Executrix) appointed, there is no one to take charge of the handling of your estate; and
- there is no formal written record of what you would like done with your estate.
The Wills and Succession Act deals with the first problem by providing for the appointment of an “Administrator” to handle the gathering together and distribution of the estate. This must be done after someone applies to take on the job and the court issues an order appointing him or her.
The Act takes care of the second problem by setting out a schedule of relatives who may inherit the estate. For example:
- except in specific circumstances of separation and cases of dependant adult children, if the deceased had a surviving spouse or adult interdependent partner, and any surviving children who are also children of that survivor, the whole of the estate goes to that survivor;
- but if the deceased has surviving children from a different spouse or partner, the surviving spouse or adult interdependent partner only receives a portion of the estate (the greater of the amount stated in the law at the time of death or 50% of the estate), with the rest to go to the deceased’s descendants;
- if there is a surviving spouse and a surviving adult interdependent partner, all or some of the estate will be divided between the two (depending on whether there are also children and/or grandchildren involved);
- if there is no surviving spouse or adult interdependent partner, but the deceased had children, the estate will be divided among the surviving children, and potentially also the grandchildren (if the parent – a child of the deceased – died before the deceased); and
- if there is no spouse or adult interdependent partner and no children, then the estate will go to other relatives in an order set out in the Act.
If there is no spouse and no blood relatives, then another Alberta law comes into play: the Unclaimed Personal Property and Vested Property Act. According to this law, if a person dies without a Will, after two years from the date of the grant of administration, the Administrator must give the provincial government any portion of the estate not claimed by a valid heir. The provincial government must keep this unclaimed personal property, or its equivalent value, for ten years. During the ten-year period, a valid heir could still come forward to claim the property. After the ten-year period has passed the property belongs to the government.
The result: if you die without a Will, your estate may not be divided up as you would have wished. Only you know what you want done with your estate when you die and simply telling someone, or even more than one person, is not enough. Your wishes need to be in writing. In addition, if you do not write a Will, and if there is no one to whom your estate can be left, your estate may end up going to the provincial government (under the Unclaimed Personal Property and Vested Property Act).
For more information on Dying Without a Will see:
- Student Legal Services (University of Alberta) – http://www.slsedmonton.com/civil/wills/ (see pg12)
- Calgary Legal Guidance – Dying Without a Will
- Alberta Justice – What Happens If I Die Without a Will?