The Wills and Succession Act is the principal legislation governing the administration of estates in Alberta since 2012. This key document deals with a wide range of issues, including wills, survivorship rules, beneficiaries, and more. If you’re having trouble navigating the Alberta Inheritance law and need a guide — you’ve come to the right place. 

Breaking down Alberta Inheritance Law

The Alberta Inheritance Law and the Wills and Succession Act are difficult to navigate, especially if you don’t have a legal background. We’ll break down the key aspects of the law, including wills, probates, beneficiaries, and what happens to those who die without a will.

What Is a Will?

A will is a legal document that allows a person, known as the testator, to express their wishes regarding the distribution of their assets and property after their death. It also allows the testator to appoint a guardian for any minor children and name an executor to carry out the terms of the will. 

Having a will ensures that your entire estate is managed according to your preferences, providing clarity and guidance for your loved ones during a difficult time.

Dying Without a Will in Alberta

Intestate refers to someone who has died without a will and the two biggest issues with being intestate are:

• No one appointed can deal with the estate/there is no executor.
• There is no formal record of what the deceased person wanted to do with their estate.

If this happens, two Albertan laws can handle someone being intestate and these include:

• Estate Administration Act 
• Wills and Succession Act 

The Estate Administration Act specifies who is eligible to request a court’s approval to manage your estate. This individual is known as the administrator. The Act provides a list of potential candidates for this role. Without the court’s consent, no one is authorized to handle your estate.

The Wills and Succession Act outlines who can inherit your estate once the court appoints an administrator. The administrator’s first task is to settle any debts using the estate’s assets. Afterward, the remaining assets are sold, and the proceeds are distributed to the beneficiaries.

Beneficiaries in Alberta

Under the Alberta Inheritance Law, anyone can be a beneficiary of a will, including spouses, children, parents, siblings, friends, or charities.

If someone passes away intestate, the distribution of assets is guided by Alberta’s Intestate Succession Act. This act outlines a hierarchy of beneficiaries, with spouses and children given priority.

Beneficiaries have certain rights and responsibilities during the inheritance process:

• Right to Receive Their Share: Beneficiaries are entitled to their portion of the estate as specified in the will or by Alberta law.

• Right to Contest the Will: Beneficiaries can challenge the validity of the will or the asset distribution if they believe it to be unfair or incorrect.

• Responsibility to Provide Information: Beneficiaries must supply the executor with any necessary information or documentation for asset distribution, such as bank account details or identification.

• Responsibility to Pay Taxes: Beneficiaries may need to pay taxes on any income earned from their share of the estate.

The Effect of a New Marriage or Cohabitation on a Will

Under the Wills and Succession Act, a former spouse or Adult Interdependent Partner (AIP) is considered to have predeceased the testator (the person who made the will) unless the will explicitly states otherwise.

This means that a former spouse or AIP cannot inherit gifts left in the will, serve as a personal representative, or act as a trustee unless explicitly mentioned. Additionally, any appointment of a former spouse or AIP as a guardian for minor children is revoked.

These rules only apply once a divorce is finalized. If no will exists and the former spouses have been separated for more than two years, the spouse or AIP is automatically disinherited in Alberta.

It is important to note that these rules do not apply to beneficiary designations on RRSPs, RRIFs, TFSAs, pensions, or life insurance policies. These designations may need to be updated after a divorce or separation to prevent unintended outcomes.

What Is a Probate?

Probate is the legal procedure that confirms the authenticity of a deceased person’s will and grants the executor the authority to manage and distribute the estate’s assets. This process ensures that the deceased person’s wishes, as outlined in their will, are followed and that the estate is settled correctly and legally.

In Alberta, probate is generally required for most estates. However, there are a few exceptions, including:

• Small Estates: Estates valued at less than $25,000 often do not require probate. These small estates can typically be settled without the formal probate process, simplifying and speeding up the distribution of assets.

• Jointly Owned Assets: Assets that are jointly owned, such as joint bank accounts or property held in joint tenancy, usually pass directly to the surviving co-owner without the need for probate.

• Designated Beneficiaries: Assets with designated beneficiaries, like life insurance policies or retirement accounts, can often bypass probate. These assets are transferred directly to the named beneficiaries according to the terms of the policy or account.

• Trusts: Assets placed in a trust are managed according to the terms of the trust agreement and generally do not go through probate. This can be an effective way to avoid probate and ensure a smoother transfer of assets.

Here are the general steps outlining the probate process.

Filing an Application

The executor submits a probate application to the Surrogate Court in the jurisdiction where the deceased person lived. This application includes the original will, a death certificate, and other necessary supporting documents.

Appointing an Executor

The Surrogate Court appoints the executor named in the will. If the named executor is unable or unwilling to serve, the court will appoint a substitute executor.

Notifying Beneficiaries

The executor is responsible for notifying all named beneficiaries and any other interested parties about the probate application. This ensures that everyone with a potential interest in the estate is informed.

Reviewing the Will

The Surrogate Court reviews the will to confirm its validity and ensure it meets Alberta’s legal requirements for a will. This step is crucial to ascertain that the will is legally binding.

Issuing a Grant of Probate

If the will is deemed valid, the Surrogate Court issues a Grant of Probate. This legal document gives the executor the authority to manage and distribute the estate’s assets according to the will’s instructions or Alberta law if there is no will.

Final Thoughts on Alberta Inheritance Law

Navigating Alberta Inheritance Law, particularly the Wills and Succession Act, can be difficult, but understanding its key components is essential for ensuring your estate is handled according to your wishes. 

A clear will, knowledge of probate procedures, and awareness of beneficiaries’ rights and responsibilities will help streamline the process. Proper estate planning can provide peace of mind and clarity for your loved ones during a difficult time.

To help ensure your will is well planned and thought out, get started with Lawyers Direct Online. Our platform can connect you with the top estate planning lawyers in Alberta, ensuring your wishes are respected and carried out after you’ve passed.