Intestate Law: dying without a Will (not a good idea)
Recently my partner and I have realized that we need to think a little more about our estate planning. We have kids, and own property. Should we have a will? What happens if one, or both of us, die without a will?
The loss of a loved one is difficult for everyone involved. There is much to think about and to do. It can feel overwhelming for family members who must take care of the affairs of their dearly departed. Having a Will that declares your desires and provides guidance for those left behind is one of the most important ways you can help your family through those difficult days. It also ensures you have a voice in deciding what happens to your Estate, and to your children when you can no longer care for them yourself.
Dying Without a Will in Alberta
For whatever reason, however, many Albertans have never completed a Will. Dying without a will is referred to as dying Intestate. This comes from the Latin prefix in, meaning “not” and testatus meaning “having left a will.” One who leaves a Will is a Testator. One who does not leave a will is an Intestate. The law in Alberta has tried to step into the gap here and drafted Legislation dealing with Intestacy. The Legislation anticipates the general expectations of society in the event of an Intestate death. The Estate distribution of the Intestate is governed in Alberta by the Wills and Succession Act, SA 2010, c W-12.2 (the “WSA”).
The WSA does just about what you would expect it to do. It takes those general expectations of the public and applies them across the board. If the Intestate is married, their spouse receives the whole of the Estate. If the spouse does not survive the Intestate, his or her children inherit. After this the formula gets more complex.
What happens if an Intestate does not have the family structure assumed in the WSA?
The WSA instructs the court to first attempt to find a distant relative according to a pyramid formula of consanguity.
If the court does not find a relation suitable it is possible that the whole of the Estate of an Intestate will go to the Government. Its like a 100% tax on your Estate!
So dying without a Will means that you may not have any control how your estate is distributed; the government (through legislation) does. Solution? Contact a lawyer and get your Will done now!
Chad Graham is a Student-at-law with Richards + Company. He practices real estate, corporate commercial, and wills & estate law and has been growing a commercial litigation practice as well.