Why do I need a will? Estate Planning Information from a Lawyer
Posted by wjadmin — filed in Wills and Estates Law
What if I Die Without a Will?
By Aarbo Fuldauer LLP, Lawyers
A will is the basic legally binding document that we all should have prepared. Of course there are many occasions when people die without a will. I am often asked ‘what happens then?’
In Alberta, a person dying without a will dies ‘intestate’. When this happens Part 3 of the Wills and Succession Act of Alberta governs what happens to your estate. I will attempt a brief summary of the distribution scheme imposed by the legislation;
Section 60 If you die learning a spouse or adult interdependent partner (‘common law spouse’) and no children, your entire estate goes to the spouse or adult interdependent partner;
Section 61 If you die leaving a spouse or adult interdependent partner and a child or children where your surviving spouse is also the parent, your spouse or adult interdependent partner gets your entire estate. If the spouse is not the parent of the child or children then the spouse or adult interdependent partner gets 50% and the child/children share the other 50%
Section 63 If you still have a spouse but you were separated at least 2 years or had a court order or agreement that is a final property split, then the spouse is deemed to have predeceased you and gets nothing.
Section 66 If you have no spouse or adult interdependent partner, but have children (or grandchildren) at the time of death, the estate will be split equally amongst your children or grandchildren, with a share also being split amongst grandchildren from a pre-deceasing child.
Section 67 If you have no spouse, adult interdependent partner, children, or grandchildren, your estate goes first to your parents or parent of surviving, but if not it goes to your siblings.
Basically the act continues in its distribution scheme down the line of relatives to a limited extent. In the event there are no relatives close enough to qualify then eventually the government of Alberta would become the beneficiary of last resort.
Of course many issues are not and really cannot be covered off by the above default legislation. Some of the more obvious problems when there is no will include:
1) No appointment of an Executor as occurs in the will to look after the funeral and process the estate debts, assets and bequests. Instead an ‘Administrator’ must be appointed by the Courts;
2) You will have no say over funeral arrangements, although usually a funeral home will ask your next of kin for direction;
3) There will be no bequests of money or special keep sakes to chosen people or charities;
4) There will be no ability to set up life estates for people in things like your home;
5) Children and grandchildren will take at 18 years of age rather then at an older more mature age.
6) You will not be able to set up a trust fund for young beneficiaries, for example your children, where money is held until a certain age by a trusted person and used for education and necessaries of life, until the child is old enough to manage the money wisely (say 25);
7) While a young beneficiary is under 18 the government of Albertawill manage his or her money;
8) If you have no surviving spouse, children or grandchildren, while the estate will likely go to your more extended family, nothing will go to your predeceasing spouses ‘blood’ relatives;
9) You will not have a chance to name a guardian to look after your children who are under 18;
10) The legal costs of the estate will likely be higher than if you had a will.
Hopefully after reviewing the above information you will agree that having a will prepared should be a priority. The fee for a couple doing a standard will is not prohibitive usually about $700.00 for the two, not each. The cost of a single will is normally $500.00.
For more information contact Aarbo Fuldauer LLP, Lawyers at 3rd Floor 1131 Kensington Road N.W., Calgary Alberta, T2N 3P4 or [email protected] or phone 403-571-5120.
Aarbo Fuldauer LLP,
– The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal advise, please contact a lawyer.
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