What happens if you die without a will?
If you die without a Will, you are said to die “intestate”.
If this happens, two problems come up:
- there is no one appointed to deal with your estate; and
- there is no formal, written record of what you wanted to happen with your estate.
There are two laws in Alberta that deal with these problems.
First, the Estate Administration Act sets out who can apply to the court for a grant of administration for your estate. This person is the administrator. The Act sets out a list of people who can apply. No one has authority to deal with your estate without permission from the court.
Alberta’s Wills and Succession Act sets out who can inherit your estate after the court appoints an administrator. The administrator must first pay off your debt using the assets in the estate. Remaining assets are sold and the money received is given to the beneficiaries.
Who gets your estate?
The law assumes that you would have left your estate to your family if you had made a Will.
The Wills and Succession Act sets out a schedule of relatives who may inherit your estate:
- if you have a surviving spouse or adult interdependent partner but no children or other descendants, then your estate goes to your surviving spouse or partner (except in specific circumstances of separation);
- if you have a surviving spouse or adult interdependent partner and surviving children or other descendants with that spouse or partner, your estate goes to your spouse or partner (except in specific circumstances of separation and cases of dependent adult children);
- if you have a surviving spouse or adult interdependent partner and surviving children or other descendants who are from a different spouse or partner, then the surviving spouse or partner gets a portion of your estate (the greater of $150,000 or 50% of the estate) and the rest goes to your descendants;
- if you have 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 or grandchildren involved);
- if you have surviving children but no spouse or adult interdependent partner, your estate will be divided among your surviving children and potentially also your grandchildren (if your child died but has surviving children – your grandchildren);
- if you have no spouse or adult interdependent partner and no children, then your estate will go to other relatives in an order set out in the Act.
If you have 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, after two years from the date of the grant of administration being issued by the court, the Administrator must give the Government of Alberta 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 can 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 want. Only you know what you want done with your estate when you die and simply telling someone is not enough. Your wishes need to be in writing. And if you do not write a Will and there is no one to whom your estate can be left, your estate may end up going to the provincial government.
For more information on dying without a will see:
- Student Legal Services (University of Alberta): Wills, Personal Directives and Powers of Attorney (see page 12)
- Calgary Legal Guidance: Dying Without a Will
- Alberta Justice: What Happens If I Die Without a Will?
- LawNow Volume 42-1: Legacy and Planning: Wills and Estates
- LawNow article: “Have You Heard the One About The Canadian Who Died Without a Will?” by Kathy Hawkesworth