Intestate: Dying Without a Will in Alberta. What happens?

Most people understand the need for a Will – but surprisingly few Albertans write a will until they enter their later years.

A 2018 Angus-Reid poll found that only 35 percent of Canadians have an up-to-date Will and only 51 percent have a will at all.
Consequently, a significant number of individuals die intestate – without a Will – and are unable to direct how their property is passed on. The provisions of the Wills and Succession Act of Alberta determine who inherits your estate, which may not reflect your wishes.

Unnecessary delays, added costs, and avoidable stress can burden loved ones. Spouses and dependents may face financial hardship while the estate is being resolved. In some cases, assets may be distributed to individuals the deceased would not have chosen—all because no Will was in place..

Read More → How to Contest a Will in Alberta

What happens to your estate if you die intestate?

Contrary to common belief, if you die intestate, the government does not automatically receive your entire estate—except in limited circumstances. However, you do lose control over who inherits your estate.

Learn More → A Guide to the Wills and Succession Act in Alberta

The Wills and Succession Act is is the primary legislation governing the distribution of intestate estates,. This will be discussed in more detail in the following section.

The rules governing the distribution of intestate estates are generally straightforward, logical, and rigid, leaving little room for interpretation. A summary is provided below:

If there is a surviving spouse or adult interdependent partner (AIP), and all children (if any) are also from that relationship: your entire estate passes to your spouse or AIP.

If there are children and a spouse or adult interdependent partner (AIP), but the children are not from that relationship: The surviving spouse or AIP is entitled to a preferential share—either the amount specified in the regulations or 50% of the estate, whichever is greater. Any remaining portion of the estate is divided equally among the deceased’s children.

If there are children but no surviving spouse or adult interdependent partner (AIP): the estate is divided equally among the children. If a child of the deceased has already passed away but left children behind, the child’s share of the estate is divided equally among there children (the deceased’s grandchildren).

If there are no children, surviving spouse, or adult interdependent partner (AIP): the estate is divided equally among the deceased’s parents. If only one parent survives, that parent receives the entire estate

If there are no children, no surviving spouse, no adult interdependent partner (AIP) and no parents: the estate is divided equally among the deceased’s siblings. If a sibling of the deceased has already passed away, but left children, that sibling’s share of the estate is divided equally among those children (the deceased’s nieces and nephews).

If there are no children, no surviving spouse, no adult interdependent partner (AIP) no parents and no siblings: 50% of the estate is divided among the deceased’s paternal grandparents—or, if they are deceased, to the decease’s paternal aunts and uncles—and 50% to the maternal grandparents—or, if they are deceased, to the maternal aunts and uncles.

What is Alberta’s Wills and Succession Act?

Most people want to have a say in what happens to their assets after they die. They may wish to leave them to a friend, charity, or another beneficiary—but without a will, this cannot happen.

The Wills and Succession Act is the primary legislation that determines what will happen to your property if you die intestate in Alberta. You have already seen the main rules for distributing an estate. These rules help prevent excessive disputes over an intestate’s property. While most people find them reasonable, their strict application can sometimes lead to outcomes that seem unfair. In such cases, the matter can often be resolved in court on a case by case basis.

The Wills and Succession Act is a general set of guidelines, and family circumstances sometimes deviate from the norm.

Dying intestate can cause significant inconvenience for surviving family members. For example, if a parent dies without a will and part of the estate is intended for a child under 18, the other parent or guardian may need to apply to the Public Trustee of Alberta to access funds held in trust whenever money is needed for the child’s expenses.

A surviving spouse who is retired or otherwise unable to work may be disadvantaged under intestacy laws, as they could be required to share the estate with adult children from a previous relationship who are financially independent.

There are situations where the portion of the estate allocated to dependent family members under the Wills and Succession Act is insufficient to meet their needs. Situations like these may require court intervention to achieve a fair outcome. Inadequate support for spouses, adult interdependent partners, or children under 18 is one of the leading causes of estate litigation in Alberta meaning court action can occur even when a Will exists.

What is the Dower Act in Alberta?

Apart from the Wills and Succession Act, you may also hear the Dower Act referred to if somebody dies without a will in Alberta.

This is additional legislation relating to the homestead of the deceased before death, i.e., the land upon which there is a dwelling house occupied by the owner where there is no joint title held.

The surviving spouse is entitled to occupy the dwelling house or rent the land for monthly income – regardless of the provisions of the Wills and Succession Act. However, the surviving spouse is not allowed to sell, mortgage, or will away the homestead unless it has been bestowed in a will.

This effectively protects surviving spouses of intestates from being turned out of their homes because their names are not on the title. While the Dower Act’s provisions are quite simple, they are frequently misunderstood and you may require legal advice to understand certain exceptions that may apply in your case.

Make a will and control what happens to your estate

As you have seen, if you die without a will in Alberta, provincial legislations exist that determine what happens to your estate – and it may not be what you intend. The results may be undesirable and unfair.

By writing a will with aid of an experienced estate planning lawyer at Vest Estate Lawyers, you can distribute your estate according to your wishes, make provisions for dependents, and state your reasons for not leaving assets to certain family members if required.