Aarbo Fuldauer LLP
www.aflawyers.ca

I would like to clarify what I have recently discovered to be a common misconception regarding Wills. A number of clients have informed me of their concern to have a Will drafted as soon as possible because they did not want to die without a Will and leave all their assets in the pockets of the government. I fully advocate the importance of having a Will, but rest assured that if you die without a Will, the government is not going to swoop in and take all of your stuff, unless you have no living heirs.

The legislation that governs the distribution of intestate estates (ie. estates of people who die without a Will) can be found in sections 58 through 70 of the Wills and Succession Act, SA 2010, c W-12.2.  http://canlii.ca/t/8ntp One of the good things about this portion of the Wills and Succession Act is that a person’s intestate estate is distributed in a way that that person may have reasonably distributed it anyway had he/she drafted a Will. That is to say, Alberta law dictates the distribution of an intestate estate in a very “common sense” way.

The following are common scenarios that might occur in a situation where someone dies without a Will:

a)      If the deceased has a surviving spouse or adult interdependent partner (ex. common law spouse) with NO children, 100% of the deceased’s estate would go to the deceased’s spouse/adult interdependent partner.

b)      If the deceased has a surviving spouse or adult interdependent partner WITH children, and all of the deceased’s children are also children of the surviving spouse/adult interdependent partner, then 100% of the deceased’s estate would still go to the deceased’s spouse/adult interdependent partner.

c)       If the deceased has no surviving spouse or adult interdependent partner but has children, and all of the children were alive at the time the deceased died, the deceased’s estate would be split equally between his/her children.

d)      If the deceased has no surviving spouse or adult interdependent partner but has 2 children for example, but only 1 was alive at the time the deceased died, 100% of the deceased’s estate would go to the child still alive UNLESS the deceased child has children of his/her own.

e)      If the deceased has no surviving spouse or adult interdependent partner but has 2 children for example, but only 1 was alive at the time the deceased died, and the deceased child has 3 children of his/her own, 50% of the deceased’s estate would go the living child and the other 50% of the deceased’s estate would be split equally amongst the deceased child’s children (ie. the deceased’s grandchildren). That is, each of the 3 grandchildren would get 1/3 of 50% of the deceased’s estate.

f)       If the deceased has no surviving spouse or adult interdependent partner or children or grandchildren, the deceased’s estate would be split equally between his/her parents, or to the survivor of them if only one parent is alive.

g)      If the deceased has no surviving parents, then the deceased’s estate would be split equally amongst the children of the parents (ie. the deceased’s siblings and half-siblings).

The above examples are only SOME of the possible scenarios that may occur and is by no means an exhaustive list. You will need to refer to the Wills and Succession Act or consult a lawyer if you require information on an intestate estate situation that is not addressed above.

It is possible that the government will get your money, but it would be rare.  Under the terms of Unclaimed Personal Property and Vested Property Act,C. U‑1.5 there are provisions that the government may get the money, but you really would have to have no know heirs.  http://canlii.ca/t/81wh

Even though the law has measures to deal with intestate estates, I highly caution against relying on the Wills and Succession Act to dictate the distribution of your intestate estate in lieu of preparing a Will, especially if the legislation would dictate a distribution contrary to what you would have otherwise wanted. For example, if you have no surviving spouse or adult interdependent partner but you have 3 adult children, and you only have a good relationship with 1 of your children, you may want to give the majority or entirety of your estate to that one adult child. This would have to be specified in a Will. If you do not have a Will when you pass away, your 3 adult children would share equally in your estate.

Drafting a Will provides other significant advantages:

a)      Designate Executor (personal representative)— You can designate a personal representative to manage your estate when you die. This is likely going to be someone that you highly trust as that person will have full access to your sensitive financial information. Without a Will, the person who ends up being entitled to administer your estate may not be someone that you would have wanted to gain access to your financial information.

b)      Designate Guardian — You can designate a guardian for your children. Most often your primary choice is going to be your wife/husband/partner, but it would be wise for you to choose an alternate guardian in the event you and your partner die in a common accident. Choosing an alternate guardian is normally a conversation you would have with your partner while taking into account a variety of factors, not the least of which is who you believe would be the best person/couple to raise your children in accordance with your own beliefs and values. However, without a Will, you will not be able to dictate who gets guardianship of your children. In the best case scenario, your children will go to the person/couple you would have otherwise chosen. However, in (one of) the worst case scenario(s), there will be a massive fight amongst your family members as to who would be the most suitable guardian. If they cannot come to an agreement, they would have to make an application to court for the court to decide who would be the most suitable guardian. Further, the legal fees incurred in this application would likely be taken out of your own estate which is money that would have otherwise gone to your children. Though there may only be a small percentage of families who would put up this much of a fight over guardianship of your children, the fact remains that such a hassle is easily avoidable by drafting a Will.

c)       Designate personal items — Many people have possessions that have low market value but high sentimental value. For example, a necklace passed down from generation to generation may not be worth very much if you try to sell it at a jewelry store, but is still very important to you because of all of the adventures that necklace has experienced. Most people prefer to leave their sentimental items to a particular person, whether it be their child, one of their relatives, or even a close friend. This is something that, again, can only be accomplished with a Will. Without a Will, all of your belongings, including your sentimental items, would be distributed to the person(s) entitled to your property in accordance with the Wills and Succession Act, which may not be the person you would have wanted to have such a keepsake.

d)      Cost and Clarity — A Will is at least just as much for your loved ones as it is for yourself. If you die without a Will, or for that matter, if you die with a Will that has been poorly drafted, any inconvenience by reason of such is suffered by your loved ones, not you. Without a Will, your loved ones are the ones who are going to have to expend the time and energy to apply to court to be your estate’s administrator and your children’s guardians. With a poorly drafted Will, your loved ones are the ones who are going to have to rack their brain to interpret your Will and determine how you wanted to distribute your estate upon your death. These are all things you can avoid with a properly drafted Will.

The above are several examples of why you should draft a Will instead of leaving your estate to be distributed as an intestate estate in accordance with the Wills and Succession Act. With a Will, you can dictate the distribution of your estate in your own terms without having to worry about whether the law on intestate estates will distribute your property in a manner you want.

For more information, please contact the law office of Aarbo Fuldauer LLP at:

Address:              3^rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4

Phone:                403-571-5120

Email:                   [email protected]

Anthony Pranata, Barrister & Solicitor
[email protected]

To see Anthony’s bio:
https://www.aflawyers.ca/pranata.php

To visit our Will and Estate Planning page:
https://www.aflawyers.ca/wills.php

The Wills and Succession Act of Alberta:
https://www.canlii.org/en/ab/laws/stat/sa-2010-c-w-12.2/latest/sa-2010-c-w-12.2.html