Intestate Law: dying without a Will (not a good idea)

Recently my husband 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?

Statistically, if you don't yet have a Will you are not alone. More than 50% of your fellow Canadians don't have one.

Maybe you feel good about being like everyone else - don't!

We certainly understand why many people don't get that done. It can feel overwhelming just to think about death and how you want your estate to be handled.

But if you don't have a Will (and trust us on this), its way more overwhelming for family members who must take care of the affairs of their dearly departed who didn't take the time to do a Will. 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

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 tries to make sense and tries to distribute estate assets fairly (and logically). But like any other legislation, it doesn't always work out how you'd want it.

What Happens?

What happens if an Intestate does not have the family structure assumed in the WSA? Well, it's not easy to figure out . . . Of course it can work out. For example, if you have a spouse and no kids (and aren't separated at the time of death - and uhm - don't have any other 'descendants') - then it's easy! It goes to the spouse.

But if that is not the case, things get a bit more confusing.

• The WSA instructs the court to first attempt to find a relative (or 'descendant') according to a pyramid formula of consanguinity.

• You will have to get comfortable with all those fun WSA terms - like adult interdependent partner, descendants, kindred, 1st, 2nd, 3rd, 4th and 5th degree kin.

• It uses terms like "degree of relationship" where (for example) "individuals of the 5th or greater degree of relationship to the intestate are deemed to have predeceased the estate". For reference, Great Aunt Gertrude would be a 4th degree relative.

• And if the court doesn't find a relation suitable to get your estate, it is possible that the whole of the Estate of an Intestate will go to the Government. It's like a 100% tax on your Estate!

So dying without a Will means those you leave behind have to figure all that out and get the Court involved. And you will not have any control how your estate is distributed; the government (through legislation) does. Solution? Contact a lawyer and get your Will done now!

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Updated 2025 by Darren Richards. For more information contact Cameron Taylor with Richards + Company. He practices estate law (dealing with probate and administration of wills).