If you pass away without a will in Alberta, you die “intestate.” This can leave your family with no legal authority to administer your estate and with legal uncertainty over how the estate is to be distributed. Ensuring your will is in order is one of the most important steps you can take to protect those you care about from additional stress and work after you pass away. While planning for the end of life is never easy, it is important. You may not benefit from the Will but it will make your family, and your heir’s lives much better at a time when they are already grieving the loss of a loved one.
Knowing how Alberta’s estate laws work when there’s no will allows you to take proper steps to protect your assets and loved ones. Below, we explore the complications that arise from dying intestate and how a valid will helps secure the best result for your estate.
How Your Assets Are Divided
When you pass away without a valid will in Alberta, the distribution of your estate falls under the Wills and Succession Act (WSA). Instead of your personal preferences guiding the process, provincial law steps in. The WSA determines who gets what, how much they receive, and when they receive it based on your family structure.
- Spouse only: All your assets and property transfer directly to your surviving spouse.
- Spouse and children: If all of your children are also your spouse’s children then the entire estate will be given to your spouse. If you have any children who are not also your spouse’s children then your estate is divided between your spouse and your children. The exact division varies depending on the value of the estate as there is a minimum, called the preferential share, that the spouse is to receive. If the estate is large enough then your spouse would receive 50% and the other 50% would be divided among your children.
- No spouse or children: Your assets are divided among your then living siblings. If any of your siblings have passed, or you do not have any, then there is a complicated calculation that would extend out to more distant relatives.
- No family members: If you do not have any living relatives, your entire estate transfers to the Alberta government.
The distribution can become very complicated when there are blended families, or if you are married but separated and living “common-law” with a new partner. In Alberta a common law partner is called an “Adult Interdependent Partner” and they are governed by the Adult Interdependent Partnership Act.
What Happens to Minor Children Without a Will?
If you die with young children but without a will, then haven’t legally named a guardian for them. In this case, provincial courts must decide who will step in and care for your children, making their decision based on what they think is in the child’s best interests. Family members can apply for guardianship, but the courts have the final say.
The most effective way to secure your children’s future and avoid lengthy court battles is by drafting a will that clearly names a legal guardian.
In addition, with a will you can include an appropriate trust to ensure that your children’s inheritance will be properly managed and available to them as they grow up. If you do not have a will then any inheritance that is to be given to your children will be managed by the Public Trustee and given to your child once they turn 18. Most people feel that giving the entire inheritance to an 18-year-old is setting that child up for failure. Many of our clients use a trust to 22 or 25 to ensure that the child has access to the funds when they need it, for example for education, but the trust does not terminate until they are mature enough to manage the money on their own.
How Outstanding Debts Are Handled
Before your family receives any assets, your estate must pay off all outstanding debts. When you pass away intestate, the courts appoint an administrator to manage the estate and handle these obligations. However, someone must step forward and ask to be appointed. The court generally will not seek out and find someone to appoint. If no one steps forward the estate may just sit unadministered and your family would not receive their inheritance. The Public Trustee may seek to be appointed in the event here are minors interested in the estate.
If the estate is solvent—meaning it holds enough assets to cover its debts—the Estate Administration Act and the common law follow a strict priority system for paying creditors in Alberta:
- Secured debts: The estate pays debts backed by collateral next, such as mortgages or car loans. If the estate lacks the funds to cover the full amount, the creditor can seize and sell the asset to recover the money owed.
- The Executor’s Expenses: The executor must pay for burial and a funeral. In addition they must be reimbursed for their out-of-pocket expenses incurred in administering the estate plus their reasonable compensation.
- Preferred creditors: Certain debts take priority over general unsecured debts. This category includes any tax owed to the government.
- Unsecured debts: These are paid last. They include credit card balances, personal loans, and unsecured lines of credit. Unsecured creditors only receive payment if assets remain after the estate pays the secured and preferred creditors as well as the executor’s expenses.
Common Challenges That Arise Without a Will
Passing away before getting your affairs in order forces your family to make a court application to obtain authority to administer your estate before they can even begin. This process adds time and cost to the legal process. Dying intestate makes estate administration more difficult and puts grieving family members through unnecessary hardship.
Common challenges include:
- Delayed access to funds: Financial institutions immediately freeze bank accounts until the courts officially appoint an administrator.
- Increased family conflict: Dying intestate drastically increases the chances of family disputes, especially when managing high-value assets or blended families.
- Loss of personal control: Without specific instructions, a strict legal formula determines who receives your personal belongings and sentimental items.
- No charitable giving: A will allows you to leave a legacy by donating to organizations. Without one, all assets default to family members or the government.
- Higher legal expenses: Appointing an administrator requires a court application and may result in increased legal costs.
Take Control of Your Estate Today
Letting provincial law decide for you brings extra stress, costs, and delays to the people you care about most. Having a legally binding will ensures your assets are distributed just as you intend and protects your minor children.
How Main Street Law Can Help You Plan with Confidence
At Main Street Law LLP, our experienced Wills & Estates team helps individuals and families across Spruce Grove, Edmonton, and Drayton Valley plan with confidence. We understand that estate planning can be overwhelming, but good legal guidance really makes the process easier. Whether you need a first will, want to update an estate plan, or are dealing with complex family or financial situations, we can provide practical advice every step of the way.Don’t leave your legacy to chance. Take control of your estate today and make sure your wishes are respected.
To learn more or to get started, visit mainstreetlaw.ca/wills-estates or call 780-960-8100 to book your consultation.
