New Wills Law for Alberta

[Updated] This is a summary of Alberta’s new Wills and Succession Act, which came into force on February 1st 2012. The new Act repeals the Wills Act, Intestate Succession Act, Dependents’ Relief Act,, Survivorship Act, and s. 47 Trustee Act. It also amends the Amends Matrimonial Property Act (MPA) to allow for MPA applications after death of spouse.

Here is a point form summary of the major changes:

Intestacy (Dying Without a Will)

  • All goes go spouse/AIP if surviving children are all from the deceased; All goes to spouse or AIP (Adult Interdependent Partner) if estate is less than prescribed amount (expected to be $150,000) and all surviving children are from that relationship
  • If spouse or AIP and children from other relationship(s) then 50% to spouse/AIP and children split remaining 50%
  • If spouse and AIP and no children, they share 50/50
  • If spouse and AIP and children are from one of them, all to him/her if estate under prescribed limit
  • If spouse has been separate and apart from deceased for more than 2 years before the death, that spouse is deemed to have predeceased the intestate and gets nothing
  • If no spouse or AIP or descendants, then to descendants per stirpes
  • http://en.wikipedia.org/wiki/Per_stirpes

  • If no descendants, then to parents in equal shares
  • If only one parent, he/she takes all
  • If no parents then to descendants of parents
  • If no parents or descendants of parents, but there are grandparents or descendants of grandparents the 1⁄2 divided between each side but if none on one side other side takes all
  • If no parent or descendant and no grandparent or descendant but great-grandparents or descendants, then 1⁄2 divided between each side but if none on one side other side takes all
  • BUT all this only goes to the 4th degree as individuals of 5th degree are deemed to have predeceased the intestate
  • If no heirs the Unclaimed Personal Property and Vested property Act takes over

Designation of Beneficiaries to Certain Plans

  • S. 47 Trustee Act moved here without change
  • TFSA`s added
  • These beneficiary designations are not revoked by divorce or termination of AIR (Adult Interdependent Relationship)

Family Maintenance and Support

A. Temporary Possession of Home

  • Surviving spouse or AIP has right to be in possession of family home and household goods for 3 months after death of spouse
  • Estate must pay rent or mortgage, taxes and insurance during survivor`s possession
  • These payments are deducted from spouse/AIP`s share unless will or court order says otherwise
  • Spouse/AIP in possession must maintain and repair the house
  • Personal representative of estate has right to enter on 24 hours’ notice or with consent
  • Court can cancel or extend the possession period
  • Possession order can be registered at Land Titles

B. Right to apply for Maintenance and Support

  • Spouse/AIP, minor children, disabled adult children and children at least 18 but under 22 and unable to withdraw from parents’ charge because in full time attendance at post- secondary schools can apply 4 hours’ notice or with consent
  • Court can cancel or extend the possession period
  • Also, if deceased is a grandparent who stood in loco parentis to his/her minor grandchildren, those grandchildren can apply
  • Applicants can request financial disclosure from Personal Representative and vice versa

Wills

  • Gifts to ex-spouses/AIPs are void unless will expressly allows them
  • A will is no longer revoked by marriage
  • Unless the will says otherwise, a gift in a will to a former spouse or AIP is now terminated by divorce or termination of the AIR
  • Appointment of spouse or AIP as Personal Representative, trustee or guardian of a child is also revoked

Matrimonial Property

  • Death is now a trigger for a matrimonial property claim by a surviving spouse unless parties contracted otherwise
  • The spouses do not have to be divorced at death for the survivor to make a claim
  • Claim is for amount eligible under MPA (exempt property, just and equitable property and 50/50 property)
  • The MPA entitlement is paid out of the estate
  • This will only affect the spouse who is not receiving all of the deceased’s estate in the will
  • Probably most relevant to spouses of a second marriage where deceased left children of the first marriage
  • Anything passing to surviving spouse by right of survivorship or by beneficiary designation are treated as matrimonial property
  • Assets passing to third parties are also treated as matrimonial property of deceased for calculation purposes
  • Gifts to surviving spouse in the will are treated as matrimonial property
  • If court finds the surviving spouse already has his/her share of matrimonial property no order is made

Survivorship

  • In common tragedies, the seniority presumption that oldest died first is repealed and replaced with presumption that each died before the other
  • And, when joint tenants die in a common tragedy the property is deemed held in tenancy in common

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59 thoughts on “New Wills Law for Alberta

  1. My son's father just died. His father told him that he would receive an inheritance in his Will. His current wife is also named as a beneficiary. My son is not on the best of terms with his father's widow. Can my son get a copy of the Will so that he knows exactly what the details are pertaining to his inheritance?

    1. A sealed will is one where the person who has prepared it presents it (in a closed envelope that is stamped with a seal) to a notary with two witnesses present. The envelope will not be opened until after the death of the person who wrote it. The will is \”unsealed\” so that the executor may act on it.Sealed wills (Le testament mystique) are common in France; much less so elsewhere.No, the executor does not know what is in a sealed will until it is opened. The executor generally doesn't know what is in any will until the time comes to probate it.  The Editors

  2. Can my spouse and I appoint one another as executors of our estates due to a lack of individuals willing or able to perform this duty?

    1. It is never wise to appoint an executor who is also a beneficiary of a will. The risk is that the appointment is challenged (on bias/self-interest) and a court appoints a replacement.Richard DayPublisher Self-Counsel Presshttp://www.self-counsel.com

  3. The safest approach to avoid your wills being challenged is to assign executors who are not immediate family or in any way beneficiaries of your wills. Assigning each other risks a potential beneficiary challenging the appointment and that could lead to a court-appointed executor. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  4. An error was made on Probate of listing of assets consisting of mininal value which the Estate lawyer missed off multi listing, but the Estate actually overpaid Probate costs due to other assets listed but found later that they should not have been as a transfer of title of farmland was in process prior to the death, What repercussions are there? The beneficiary inherited all the assets, and while the Estate solicitor was instructed by beneficiary solicitor to revise and request list and ask for refund of probate costs, it was not done. Is the missing of assets on a list a serious concern or is this something that can happen as we have been told that it is not a big deal, happens very often and as no other s are involved, overpaid fee, to let it go. Estate was settled years ago.

    1. Unless the overpayment was a significant sum of money, the cost of correcting the error (legal fees, time invested) is probably not worth the effort, especially as this happened a long time ago.Richard Day PublisherSelf-Counsel Press

  5. My mother had a will drawn up by a lawyer leaving, 60 % to one child and the other 40% to be divided equally amongst other family members. After my mothers' passing the child who was going to get the 60% of the estate, produced a hand written and witnessed (with my moms signature as well) will dated two days after the will that was drawn up by the lawyer now leaving 100% of the estate to the child that was getting 60%. Is this legal? As well, the child getting the 100% is now the Executor as well.

    1. Our recommendation is that you contact a lawyer who can properly evaluate the situation and then advise you.Richard DayPublisherSelf-Counsel Press

  6. In the “Intestacy (Dying Without a Will)” section above, in the very first bullet – What is the difference between “surviving children are all from the deceased” and “all surviving children are from that relationship”?
    Basically, I want to know, if me and my wife both die together, what happens to all our money, life insurance and house? all our accounts are joint accounts and house ownership also. We have one child only. Does he get everything BY DEFAULT or needs a Will?

    1. \”surviving children are all from the deceased\” means the surviving children are all from the deceased and not necessarily from the current spouse/partner. In other words, the deceased might have been married or in a marriage-like relationship with more than one partner during his ir her lifetime.\”all surviving children are from that relationship\” means the surviving children are all from the relationship between the deceased and the current spouse or partner. IN other ords, children from an earlier relationship are not included.Richard DayPublisherSelf-Counsel Press

  7. Above it states that appointment of spouse ect. gaurdian of child is revoked. Does that mean I cannot appoint gaurdianship to my husband or other friend in my will any longer?

    1. This related specifically to divorce or the end of an AIP relationship. Only in those circumstances,  the former spouse or AIP will not be permitted to act as Executor, Trustee or Guardian and will not receive any gift under the Will, regardless of its terms.  Richard DayPublisherSelf-Counsel Press

  8. My husband is one of the eight siblings but he is the first one who died. One of his older brothers is not married and does not have a spouse or children. He does not seem to have a will but has been diagnosed with dementia lately. My question is whether according to the succession rights my husband is entitled to a share of his estate ( should something happen to him) since it would be divided amongst his brothers and sisters ? My husband and I have two children.

    1. You appear to be saying that your husband has died. If this is the case, and if the older brother does not have a will, when the older brother dies his estate would be distributed according to the succession rights to living relatives, not to relatives who predeceased him. Richard DayPublisherSelf-Counsel Press

  9. http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-
    From the above document, I see that his share goes to his children. Is this still true?

    No spouse, issue or parent
    6 If an intestate dies leaving no surviving spouse, adult interdependent partner, issue, father or mother, the intestate’s estate goes to the intestate’s brothers and sisters in equal shares, and if any brother or sister is dead, the children of the deceased brother or sister take the share their parent would have taken if living.
    RSA 2000 cI‑10 s6;2002 c16 s6

    Thanks again

    1. That version of the law was repealed on January 31, 2012. The new approach to distribution when there is no will (intestacy) is described in the article above.Richard Day PublisherSelf-Counsel Press

  10. Thanks. I was looking a the Parentelic Distribution under the Wills and Succesion Act, Section 67 Chart which is part of the Justice and Attorney General document – A summary of changes in the new Wills and Succession Act SA 2010, cW -12.2.

    In his case, no will, no spouse, both mom and dad deceased.

    Step One: estate goes to either or both parents. If both are dead, then to siblings and their descendants per stirpes. Stop at Grand nieces and nephew. What is your interpretation of this, especially, the word stripes?
    I would like to really understand it .
    thank you.

    1. Per Stirpes is a Latin term meaning \”by branch\” and it is used in estate law to mean that each branch of the family is to receive an equal share of the estate. There is a link to the WikiPedia article on Per Stirpes in the description of the new Intestacy rules above.   Richard DayPublisherSelf-Counsel Press

  11. Yes, but a challenge might not work IF the beneficiary is, say, a mortgage holder, as debts need to be settled by the estate before distribution of the estate takes place. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  12. Re Alberta Probate Kit
    What if anything has been updated from the original first edition now that Alberta has passed new laws or amendments to existing effective May 2012

    1. As with all our kits which contain CDs, the CD in the Alberta Probate Kit contains an update facility. All the forms which were changed, and where necessary the relevant samples and instructions, were made available as soon as the la changed in 2012. The kit remains current. Richard DayPublisherSelf-Counsel Press

  13. Under what circumstances does a will HAVE to be probated. In this case the estate is likely worth approx. $ 400,000. This includes a home (to be sold) and contents as well as bank accounts all to be split between 3 siblings 50 /25/25.

    1. The law requires that when a person dies, their estate must go through the probate process. We do not know of any exception based on the size or nature of the estate.The first step in probate is to deal with debt — the federal and provincial governments have an interest in this, because the CRA wants to ensure taxes are gathered up to the date of death. The next element is any debt to people or companies. After debt is dealt with, probate deals with the distribution of what remains. As you have read above, provincial governments ave rules about distribution, designed to provide some safeguards for surviving spouses and children. Assuming the estate is simple, and there are no people claiming unfair treatment once the contents of the will are made known, and the executor handling the probate is not a beneficiary of the will, the process can be quite quick and not expensive (the executor will be required to place some basic advertising asking creditors to come forward, and may ask for the estate to compensate any legitimate expenses in the process – which the court will usually grant). Richard DayPublisher

  14. intestate son was killed, the mother would like to use the son's car. question is she must do probate process first? and the only other elagable dispersement is the out of country father.
    she must inform him of the estate entitlment and provide him the opertunity to wave that right and gift his half of the car to her(the mother)?

  15. My adult brother lived with my grandmother for just under 2 years and has passed away with no will (well we can't find it and neither can the lawyer her file was transferred to, original lawyer retired).My brother and I are estranged from our aunt and uncle. How do we ensure that we are given our mom's portion of the estate (she passed away in 2010). My brother and grandma did not have a formal written agreement on rent (she paid him some utilities and groceries sometimes but was basically living there for free) so I don't believe he qualifies as an AIP.

    1. If your grandmother passed away without a will, then someone will need to apply to the probate court to \”administer\” the estate. Administration involves the same tasks as probate – sorting out money issues including CRA and and debts owing, notifying family members who might have an interest in the estate, and working out a fair distribution of whatever assets there are among the relatives. Our book and forms kit, the Alberta Probate Kit, describes and explains the steps which need to be taken for administration and provides the paperwork. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  16. my mom passed away a few months ago. She has been with her adult independent partner for 20 years and they own a home together. I am an adult child not of the relationship. Does the home form part of the estate? her aip renewed a mortgage while my mom was in the hospital and the home is paid for in full upon her death. If he is automatically the executor, how will I know if I am entitled to anything? This is painful as their relationship was never good and he's been with another woman only days after my mom's death… thank you!

    1. The key in your case appears to be: \”All goes go spouse/AIP if surviving children are all from the deceased; All goes to spouse or AIP (Adult Interdependent Partner) if estate is less than prescribed amount (expected to be $150,000) and all surviving children are from that relationship\”Assuming (a) your mother passed away after the new law came into effect in February last year and (b) the value of the estate/home is greater than $150,000, then yes, the home they owned together does form part of the estate. No, an AIP is not automatically the executor of an estate. If there is a will, it would normally name both the executor and beneficiaries; if there is no will a family member can apply to the probate court to \”administer\” the estate and its distribution. Normally, the offspring of the relationship are notified of the probate. Probate normally takes place at the nearest Court of Queen's Bench to the location where the deceased lived. You could enquire there if the estate has gone through the probate process. Our recommendation is that you seek the help of a local lawyer with experience in wills and estates.Richard Day

  17. My husband died intestate with a bank account in his name and no other investments. He has two adult children by a previous marriage. I was advised by the manager at his bank in what could only be called a cursory conversation on his part, that I would have to have his children sign off their rights to the money in his account. Including his bank account his estate is well under $150,000 so I don`t see why they should have to sign away their rights when, as his wife, I am supposed to be entitled to one half of his estate or $150,000, whichever is greater. In this case the $150,000 is greater and as I understand the new laws, the funds would all go to his spouse so how do I deal with the bank in this matter? I have been his wife and caregiver for a fair number of years with absolutely no assistance from his children, and I really don`t need the expense of a visit to a lawyer at this time if I can avoid it. Thanks for your assistance.

    1. If your husband died intestate you can apply to the probate court to be the administrator of his estate. The administrator (you) then works through the requirements of notifying the tax authorities, placing advertisements for anyone owed money to come forward, and so on. The Alberta Probate Kit can steer you through this do-it-yourself process. That in turn would provide you the documentation to distribute the contents of his bank account.

      As you suggest his account is probably less than $150,000 the estate should go to you as the surviving spouse, but a bank will generally not release the funds without the probate court documents. It also sounds like your bank manager is not famiar with the changed law.

      Richard Day

  18. I am married with three grown children.
    I had previously appointed my wife as my executrix, and in your sample will (in the third edition of …Will in three easy steps) you show the spouse as executor, with a brother as an alternate.
    Yet…. in two replies above (From Richard Day) it seems that a spouse or other beneficiary should NOT be named as executors.
    Please clarify. Thanks

    1. Pat, thank you for a very good question! Yes, the sample given in the first chapter of Write Your Legal Will in 3 Easy Steps shows the spouse as executor and brother as alternate. There is no legal obstacle to this option and in many instances it can be the correct choice.My comments on the two earlier replies both pointed to the issues which arise when someone (almost always a family member) disputes elements of the distribution by the executor when the executor is also a beneficiary. So, to clarify, there is no legal obstacle to appointing one's spouse, sister, brother etc as an executor. An executor who is not a beneficiary will be more likely to be perceived as \”neutral\” (versus potentially self-interested), and that is something each author of a will needs to evaluate. Presuming you have a simple estate (which applies to most of us in Canada), there is probably not a lot to argue about. The more complicated the estate, the more potential there is for someone in the extended family to challenge the distribution, and that is when having an executor who is not a beneficiary seems to be a good option. My earlier comments perhaps implied a black-and-white decision; it is not clear-cut and each person writing a will should think about the options (the first step in the book, which is \”Choosing Your Executor\”, provides a lot of good detail about the tasks facing an executor and should help one make the right choice). Richard Day

  19. The deceased person has no spouse – no children – two living sisters, two living brothers – 5 dead siblings – deceased has no will – are the children of the 5 dead siblings entitled to a share of the deceased estate, along with the surviving 4 siblings
    mkb

    1. If there is no will then a family member or pair of family members should apply to the court to \”Administer\” the estate. This is the process when there is no will; the alternative is to let the province administer it, which is generally more expensive for the estate.Per Tom Carter's notes, if there are no descendants and no parents of the deceased who are alive, then the estate goes to the living descendants of the parents, which would be the living brothers and sisters. Richard Day

    1. The executor is required to seek out people owed money and if there is an unpaid amount under the Maintenance Enforcement Act, it would presumably qualify as a debt the executor would pay out before distributing what remains of the estate. Richard Day

  20. I am an executor in ALberta. I paid for a 3rd party to prepare all the forms to submit to the court. The clerks rejected it as they said I cant “indirectly or directly” use a non-lawyer. This doesnt seem right?

  21. I assume that the court position would be that an executor either does the work themselves or retains a lawyer. Retaining a third party who is not a lawyer could be interpreted as an assignment of the executor's tasks. Richard Day

  22. We live in Alberta, Canada. My father in-law is at the hospital right now, not in good shape. Mother -in-law is deceased. Their estate, bank accounts and other assets in both names. If there is no will, and my father-in-law also dies, what happens to the assets, bank accounts, estate? They have two children, both adults. Do those in quiestion go automaticly to them?

  23. Whens someone dies in Canada, their estate goes through a legal process known as Probate. If there is a will, the author(s) of the will usually appoint one or more people to be the executors of the will, and to take it through the probate process.If there is no will (legally, the person dies \”intestate\”), then a family member or friend can apply to the probate court to \”administer\” the estate. Our Alberta Probate Kit explains the process and includes the forms needed. Richard Day

  24. My mother passed away and there is myself and 3 others from the first marriage. My Dad has remarried and she has kids. They did not have children together. Dad did revise his will upon his 2nd marriage. If he were to pass before my stepmother, are her kids entitled? If Dad has has named them in the will, can this be appealed by his descendant children? In reading the Alberta Wills Act, I realize it states my stepmom is entitled to 50% and the remaining descent the remaining split amongst them. If he has named her to receive more, can this be appealed by us descendant children?

    1. If your father passes away before your stepmother and has made provisions in his will for the children she brought to the marriage, yes they are entitled. If he has not named them in the will and they are minors, they are also entitled if they are dependent on him.Can your father's descendant children appeal his will if the children that his second wife brought to the marriage are named in the will? Complicated question. Divorce law in Canada requires child support to be paid according to Federal standards, and presumably that happened if the children of the first marriage were minors at the time of divorce. If your father's will was properly written and witnessed, probably the only challenge the children of the first marriage could make (to try to prevent the second wife's children from an inheritance stipulated in the will) would be to challenge the father's mental competence at the time he wrote the will. Which would be an expensive process and unless there is clear and compelling evidence it is likely the courts would see it as an attempt to overturn the will by unhappy children of the first marriage. The same applies to challenging your father's decisions with regard to what he chooses to will to his second wife. Your father's decisions about distributing his property and assets as an adult may be emotionally upsetting to the children of his first marriage, but he is writing his will and presumably making decisions he feels are correct. You should not take any of the above as legal advice. If you want to understand what rights you may or may not have with regard to having your father's will amended or overturned after his death, you should consult a lawyer who can explain the laws in more detail and advise you as to the likely costs and outcomes. Richard Day

  25. I believe when my Dad revised his will (at a lawyer's office) when half of the first marriage children were still of dependents. We (including my stepmother's kids) are all adults now. Divorce did not take place from the first marriage – my mother passed away when all 4 of us children were still under the age of 18 years.

    Another question – if my stepmother passes away before my Dad and she is named in the will, I suppose when Dad passes, her children will get her portion named?

    1. If your stepmother passes away before your father and he has not considered that possibility in his will, it is most likely that he will revise his will again. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  26. My younger brother died June 23rd, 2013. He left my niece & a bank trustee as coexecutors. My niece is a pathological liar & has done everything in her power to exclude my brother's siblings from helping to plan his funeral, distributing his ashes & his personal belongings. It has been 4 months now & the estate has still not gone to probate. Me, my 3 siblings, this niece & a charity are the beneficiaries stated in my brother's will. My brother has a mortgage free house, a truck & no debt so what is the delay. I have spoken & emailed the bank trustee numerous times about viewing my brother's personal belongings yet I have no idea what or where they are because the trustee has informed me that my niece has yet to sign the probate papers & that she has someone living at my brother's house. Can I have some advice as to what I can do in this situation? Clearly the will is not being followed

    1. The first problem with probate not being done is that tax issues will arise re, the estate, especially if the key asset, the house, is being used to generate income. If you feel the trustee is cooperative, we suggest asking the trustee's advice about taking legal action to ask the probate court to replace the executor. Richard Day

  27. We have recently redone our wills, our 2children will inherit our estate after we die.
    Our son would love to get the house, and he wil pay my daughter the share of the house. How we have to put this in our will,. so that there will be no problems after we will passed away. Not we planning yet to die, but you never no.
    Annelise Jongeling

    1. Given that siblings can and often do change their minds about things they have agreed to, a simple approach would be to leave the house as a 50-50 split between the children and tell them they should see a lawyer and draw up a simple agreement that the son will pay the daughter fair market value for her half at the time of inheritance. If they later change their minds about the agreement, your will is not affected – they get a 50-50 inheritance and can work out what to do with it.

      Richard Day

  28. My father died 1.5 years ago, The executor works for a legal firm and is handling the estate. But I have not been allow to know what is going on with the estate. I have written some emails to the executor and I never get any replies.
    What rights do I have in regards to my fathers estate?

    1. If you were an adult under Alberta law at the time your father died, and were not dependant on him for support, the executor might not contact you (if you are not named in the will). Wills are normally probated within a year of death, so it is likely that your father's will has already gone through probate. You can apply to the probate court in the jurisdiction where your father died to find out if the will has been probated, and if the details are in the public record so you can see them. Richard Day

  29. How does it work with a father passing away and leaving money for his disable son. Is there a certain percentage of the money is he entilted to by law. Heard it was 50% of estate to ensure adult with the disability would be looked after.

  30. This passage:Right to apply for Maintenance and Support Spouse/AIP, minor children, disabled adult children and children at least 18 but under 22 and unable to withdraw from parents’ charge because in full time attendance at post- secondary schools can apply 4 hours’ notice or with consent Court can cancel or extend the possession period Also, if deceased is a grandparent who stood in loco parentis to his/her minor grandchildren, those grandchildren can apply Applicants can request financial disclosure from Personal Representative and vice versacovers the la as written. There is no fixed percentage. Richard Day

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