These days, people are understandably worried about the possibility of dying before their time. Even some young people have unfortunately succumbed to COVID-19. Many people are wondering what happens if they pass away without completing a will.
It should be noted that what I’m saying in this post applies to Alberta. Other provinces, and other non-Canadian jurisdictions, may have similar laws, but laws in different jurisdictions are often substantially different. So if you live outside of Alberta, or own property outside of Alberta, you should consult with a lawyer in that jurisdiction.
Intestacy under the Wills and Succession Act
When a person dies without a will, that person is said to be intestate. Under the Wills and Succession Act, if a person dies without a will, or if they have a will, but the beneficiaries indicated in the will have already died, then special rules determine who will receive property from the estate. These rules can be found in Part 3 of the Wills and Succession Act, in sections 58 through 70. (Please note that I’ve simplified some of the rules.)
If you have no children, but you have a spouse or adult interdependent partner (essentially a common law partner), then your spouse or partner will get everything, unless you are estranged from that person at the time of your death.
If you have children, and the children are from your current spouse or partner, then your spouse or partner will get everything.
If you have a spouse or partner and children from a prior relationship, then your spouse will get a preferential share or 50 percent of the estate, and the rest will be divided among your children.
If you have children, but no spouse or partner, then everything will be divided among your children. If a child has predeceased you, but has children of their own, then that child’s share will be divided among that child’s children.
If you have no children and no spouse or partner, everything will go to your parents.
If you have no children, no spouse or partner, and no parents, everything will go to your siblings.
If you have no children, no spouse or partner, no parents, and no siblings, then half of the estate will go to your paternal grandparents (or to their descendants if they’ve already died) and the other half will go to your maternal grandparents (or to their descendants if they’ve already died).
If you have no children, no spouse or partner, no parents, no siblings, and no relatives from your grandparents, then the rules look even further back to family members from great grandparents.
Why you shouldn’t rely on the intestacy rules in the Wills and Succession Act
While the Wills and Succession Act has rules for property distribution if you don’t have a will, you may not want to rely on those rules. Unless you have a will, those rules will apply.
Also, in a will, you get to select your executor. If you don’t have a will, someone will have to apply to be appointed as the administrator of your estate.
If you have minor children, you should be appointing a guardian in your will. Obviously, if you don’t have a will, you have no say in who will look after your children if something happens to you.
Furthermore, if you don’t have a will, your family will have to jump through extra hoops to administer your estate. This will drag out the process for your family and may lead to extra expenses for your estate to cover. Assuming you want things to be as efficient as possible for your family and you want to leave as much money to them as possible, you should do a will.
Finally, the will is only one estate planning document. Other important documents include the enduring power of attorney and the personal directive. If you don’t have the latter two documents, your loved ones may lack legal authority to make important decisions on your behalf (medical, personal, and financial) if you become incapacitated in a hospital intensive care unit. It’s not just a will you should complete, but an enduring power of attorney and a personal directive.