Understanding Intestate Succession in Alberta

A will, also known as a last will and testament, is a legal document that outlines a person's wishes for after their death, from the distribution of their assets to the provisions for the care of minor children.

Creating a will allows individuals to ensure that their wishes are followed after their passing and can help prevent disputes among family members and loved ones, but what happens when no will exists?

When an individual in Alberta passes away without a will, this is legally termed as dying "intestate." This situation is surprisingly more common than you think; a study by the Angus Reid Institute revealed that only about half of Canadians have a will.

The distribution of the estate’s assets, therefore, will be handled through the surrogate court, which will appoint an administrator and issue a Grant of Administration.

For intestate estates - Alberta's legal system relies on two key laws:

• The Estate Administration Act: This act specifies who can apply to the court for a "Grant of Administration." The court-appointed administrator, often a close relative or next of kin, gains the legal authority to handle the estate. This law prioritizes who can apply, ensuring that no one can manage the estate without court approval.
• The Wills and Succession Act: Once an administrator is appointed, their duties include settling any debts of the deceased using the estate’s assets. After debts are paid, the remaining assets are sold, and the proceeds are distributed to the beneficiaries as defined by the act.

In such circumstances, the absence of a will can ignite tensions among family, friends, and acquaintances as people may feel entitled to certain assets and inheritance. To address these potential conflicts, the law has established a set of rules governing the distribution of assets and estates in such cases.

Although conflict is sometimes unavoidable in these circumstances, the Wills and Succession Act establishes a structured framework for asset allocation through the province’s intestate succession laws which prioritizes the distribution of assets to the deceased's closest relatives.

Asset distribution according to Alberta Intestate Succession Law

The following provides an overview of how assets are distributed according to Part 3 of the Wills and Succession Act:

Spouse or Adult Interdependent Partner and No Descendants:

• If the deceased is survived by a spouse or adult interdependent partner and no descendants, the entire estate goes to the spouse or partner.

Spouse or Adult Interdependent Partner and Descendants:

• If all descendants are also descendants of the surviving spouse/partner:
  • The entire estate goes to the spouse/partner.
• If any descendants are not descendants of the surviving spouse/partner:
  • The spouse/partner receives the greater of: a) The prescribed amount (set by regulations), or b) 50% of the net value of the intestate estate
  • The remaining estate is distributed among the intestate's descendants.

Both Spouse and Adult Interdependent Partner:

• If there are descendants:
  • The spouse and partner each receive half of the share as calculated above.
• If there are no descendants:
  • The estate is split equally between the spouse and partner.

Descendants Only:

• If there is no surviving spouse or partner, the estate is equally divided among the descendants.
• Distribution is per stirpes, meaning the estate is divided into as many shares as there are living children and deceased children with living descendants.
• Each living child receives one share, and the share of each deceased child is divided among their descendants in the same manner.

Extended Family:

In the absence of a spouse, partner, or descendants, the estate is distributed in the following order:

1. Parents of the deceased, in equal shares if both are alive, or all to the surviving parent.
2. If no surviving parents, to the descendants of the parents (siblings, nieces, nephews, etc.).
3. If no siblings or their descendants, then to grandparents or their descendants.
4. If no grandparents or their descendants, then to great-grandparents or their descendants.

Note: Relatives of the 5th degree or greater in relationship to the deceased are not eligible to inherit under intestacy.

No Heirs:

If there are no identifiable heirs, the estate falls under the jurisdiction of the Unclaimed Personal Property and Vested Property Act. After a period of time, unclaimed properties may transfer permanently to the government.

We understand that losing a loved one is difficult and dealing with the legalities of their estate can be overwhelming, especially when there is no will, but help and support is available. Book a free consultation with us so we can help you navigate the complexities of settling an intestate estate with the right support system and peace of mind.