While many do not like to think about their own demise, having a comprehensive and sound estate plan in place is one of the most important things a person can do to assist their family in the event of their death or incapacity. A key component within an estate plan is having a clear and valid will set up to ensure that the estate is distributed the way individuals want.
When someone dies without a will, this is legally referred to as dying intestate. This situation can create significant issues; for example, if there is no appointed executor to deal with the estate and distribute the deceased’s property, the administration process can quickly become complex and take a significant amount of time. To avoid this situation, it is important to work with an experienced estate lawyer who can help set up your estate plan.
When you create a will, you must appoint an executor of your estate. It is the executor’s job to administer the estate, which involves locating, collecting and distributing the assets to the beneficiaries per the directions set out in the will. It may also involve other things, such as working through the probate process.
When a person dies intestate, there is no executor appointed. Therefore, someone must apply to the court for a grant of administration of the estate in order to obtain the authority to deal with the estate. Later on, the administrator distributes the estate to family members in accordance with applicable legislation.
The Estate Administration Act of Alberta sets out the rules pertaining to the application for a grant of administration to deal with a deceased’s estate.
The Estate Administration Act contains a list of people who are allowed to apply to the court to be appointed as the administrator of the deceased’s estate. The list is set out in descending priority order, namely:
- the surviving spouse or adult interdependent partner;
- a child of the deceased;
- a grandchild of the deceased;
- a descendant of the deceased that is not a child or grandchild;
- a parent of the deceased;
- a brother or sister of the deceased;
- a child of the deceased’s sibling if they are a beneficiary under the intestacy rules (covered in the section below);
- the deceased’s next of kin determined in accordance with sections 67 and 68 of the Wills and Succession Act who are beneficiaries under the intestacy and not referred to elsewhere in the list;
- a person who has an interest in the estate because of a relationship with the deceased;
- a claimant; and
- the Government of Alberta.
In cases where multiple people have the same priority level, additional rules will apply.
Alberta’s Wills and Succession Act contains the rules about who actually receives the deceased’s estate. After an administrator has been appointed and pays off any of the deceased’s debts, the estate is then distributed in accordance with these rules.
The estate is distributed to the deceased’s family in a specific priority order. However, the legislation has many complex rules; therefore, the administrator may seek legal guidance and advice to ensure they administer the estate appropriately.
If the deceased had a surviving spouse or adult interdependent partner but no descendants, the entire estate will be distributed to their spouse or partner. “Descendant” is defined in the legislation as all lineal descendants and includes people like the deceased’s children and grandchildren.
If the deceased had a surviving spouse or adult interdependent partner and one or more descendants, then:
- the whole estate goes to the spouse or partner if all the deceased’s descendants are also descendants of the spouse or partner, or
- the estate is split up with the deceased’s spouse or partner receiving the greater of the amount set out in regulations or 50% of the estate, with the remainder of the estate distributed among the descendants in a per stirpes manner, meaning that each surviving child gets a share, and the share of a deceased child is split amongst their descendants.
If the deceased had no surviving spouse or adult interdependent partner but had descendants, the estate is distributed to the descendants per stirpes.
The legislation contains a priority list if the deceased had no surviving spouse, partner or descendants. This list begins with the deceased’s parents, then descendants of the parents, then grandparents or their descendants, then great-grandparents or their descendants.
If the deceased has no beneficiaries under the Wills and Succession Act, then the Unclaimed Personal Property and Vested Property Act will apply, which may result in the estate becoming owned by the Alberta Government.
The team of estate lawyers at DBH Law provides a wide range of estate related services, starting with estate planning. We work with our clients to develop an estate plan that meets your needs and addresses things such as healthcare, finances and business succession. Having a proper plan should minimize the risk of future disputes; however, in the event of an estate dispute, our lawyers are ready to help with estate litigation. Please get in touch with us through our online form or by phone at 403-252-9937 to schedule a consultation with a member of our estate team.