When a person dies without a Last Will and Testament (a Will), this person is deemed to have died intestate. There are important ramifications when this has occurred for the managing the assets of this person after they have passed away.
First, there cannot be a Grant of Probate, which would be the process if a person had a Will. In a Will there would instructions for the proper distribution of that person’s estate, which then would be administered by the Executor/Personal Representative appointed in the Will.
Without this testamentary instructions being provided in a Will, a Grant of Administration is required, assuming that there is sufficient assets in the estate to warrant approval of a court in Alberta, and which occurs when there is real property, or assets held by financial institutions. In the case of an Application for a Grant of Administration, the Surrogate Court does not have the testamentary instructions set out in a Will to provide firm instruction from the person who has passed away, and what they wanted to see done with their estate.
As such, the following matters need to be addressed:
· Is there adequate information as to what assets exist and where they are held for the deceased person?
· Who should be appointed as the executor/personal representative of the estate?
· Are there competing individuals that believe they are best suited to be an executor/personal representative?
· Who are the potential beneficiaries of the estate?
· What is the distribution of the estate amongst a defined group of potential beneficiaries?
· Is there a hierarchy, of certain potential beneficiaries in their claim to an estate?
· Was there a surviving spouse, or adult interdependent partner (common law spouse) of the deceased person?
· Were there surviving descendants of the deceased person?
The Wills and Succession Act, SA 2020, c W-12.2, provides that if there is one surviving spouse, or adult interdependent partner, of that deceased person without further decedents, then that spouse or partner shall inherent the entire intestate estate.
This distribution can then be further altered with the presence of a descendent of the deceased person being alive and entitled to receive a share of the estate’s net assets. This occurs when there is a descendent that is the child of the deceased person, but not the child of the spouse or adult interdependent partner. In the case of descendants that are the children of both the deceased person and the spouse, or adult interdependent partner, there is not the same legislative entitlement for receiving a share of the estate’s net assets.
The Wills and Succession Act, also provides for distribution of an estate to not only a spouse of a deceased person, but also to an adult interdependent partner of the deceased person if they existed at the same point in time when the deceased passed away. As such, the Wills and Succession Act clearly acknowledges the rights of more than one singular spouse/partner. This distribution is then further impacted by the presence of a child or children of the descendent who then would be entitled to a share of the estate, in conjunction with a spouse and adult interdependent partner receiving a share of the estate.
If there is no surviving spouse or adult interdependent of the deceased, then the distribution of the estate is distributed in equal shares to the child or children of the estate. If a child or children of the deceased has passed away, then the share that would have been gone to that child is then divided equally amongst the grandchild or grandchildren of deceased’s child.
If there is no spouse, no adult interdependent partner, or descendants of the deceased, then the distribution of the estate goes to the deceased’s parents in equal shares, or to the surviving parent if the other has already passed away.
If there is no spouse, no adult interdependent partner, descendants of the deceased, and the parents of the deceased have both passed away, then the distribution of the estate occurs in equal shares amongst the decedents of the deceased’s person (their siblings).
Further distribution to extended family members is prescribed in circumstances when even the above referenced decedents are not alive. The Wills and Succession Act, provides as clear as possible, structure to allow for the complete distribution of an estate notwithstanding the lack of a will and instructions of testamentary intentions of the deceased.
At Family Central Law Office LLP, we can assist you in the probate or administration of a loved one’s estate, effectively managing the estate planning process, and directly dealing with contested estate matters. To learn more about these legal services we provide, please contact us today for a free consultation with one of our experienced estate planning lawyers by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
