[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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