Understanding the Wills and Succession Act Alberta
Learn how the Wills and Succession Act, Alberta, governs wills, intestacy, and dependants’ relief. Driessen De Rudder explains what it means for your estate.
Overview of Alberta’s Wills and Succession Act
Navigating the intricate provisions of Alberta’s Wills and Succession Act (“the Act”) can feel like embarking on a legal adventure into uncharted territory. The Act brought together five different pieces of legislation. It clearly outlines how property transitions after someone’s death, determining the fate of your assets.
From understanding the nuances of intestate succession to comprehending the implications of the Dependants Relief Act, the legal labyrinth can appear complex and daunting. In this article, we attempt to demystify the complex elements of the Act, providing you with a solid grasp of its implications.
What Is the Wills and Succession Act, Alberta?
The Act, which took effect on February 1, 2012, consolidates the law concerning property transfer upon death. The Act establishes clear guidelines on how property will be transferred and to whom.
The Act is the primary legislation governing wills, intestacy, survivorship, dependent support, beneficiary designations, and other succession-related matters. The Act is built on three fundamental principles:
- Individuals can transfer their property to others upon death, and any interference with their wishes must be justified.
- If a person does not explicitly express their preferences for property distribution upon death, it is presumed that they intend it to pass to their family members.
- The freedom to transfer property upon death is subject to fulfilling legal and family support obligations.
Structure and Key Parts of the Act
The Wills and Succession Act is a comprehensive statute that combines several previous laws, including the Wills Act, Intestate Succession Act, Dependants Relief Act, Survivorship Act, and sections of the Matrimonial Property Act. By merging these into one cohesive framework, Alberta created a single, modern law that simplifies estate management after death.
The Act is divided into several interconnected parts.
- Part 1 governs wills — outlining requirements for creating, revoking, and interpreting them.
- Part 2 focuses on intestacy, setting out the order of inheritance when no valid will exists.
- Part 3 deals with survivorship rules, clarifying what happens when the order of death between two people is uncertain.
- Part 4 covers family maintenance and support, ensuring that dependants receive fair consideration even if left out of a will.
- Part 5 addresses beneficiary designations, such as life insurance or retirement accounts, to ensure consistency with a person’s estate plan.
Each part of the Act interacts with the others to balance testamentary freedom and family obligations. For example, intestacy provisions reference the dependants’ relief section to ensure those financially dependent on the deceased are not left without support. Similarly, survivorship rules align with intestacy and will provisions to prevent conflicting claims. This cross-referencing structure helps ensure equitable outcomes while honouring legal and familial duties under Alberta law.
Wills, Marriage, and Adult Interdependent Relationships
The Wills and Succession Act contains rules about how marriage, Adult Interdependent Partner (“AIP”) relationships, divorce, and separation can affect your estate plan.
Under Alberta law, getting married or becoming an Adult Interdependent Partner does not automatically cancel an existing will. This makes it important to review your will and other estate planning documents when your family situation changes.
An Adult Interdependent Partner relationship can be created through a written Adult Interdependent Partner Agreement or by meeting Alberta’s legal requirements for that type of relationship. These relationships can affect inheritance rights and other estate matters.
The Effect of Divorce and Separation
The Act generally treats a former spouse or former Adult Interdependent Partner as having died before the will-maker, unless the will says otherwise. This means a former spouse or partner will usually no longer receive gifts under the will or serve as an executor, trustee, or guardian named in it.
However, separation does not always have the same legal effect as a divorce or the end of an Adult Interdependent Partnership. In some situations, a separated spouse or partner may still have rights that affect the estate.
It is also important to remember that these rules usually apply only to wills. Beneficiary designations on RRSPs, RRIFs, TFSAs, pensions, and life insurance policies may not change automatically after a separation or divorce. If those designations are not updated, a former spouse or partner could still receive those assets.
Major life events such as marriage, entering an Adult Interdependent Partnership, separation, or divorce are good times to review your will, beneficiary designations, and other estate planning documents to make sure they still reflect your wishes.
Intestate Succession: How Estates Are Distributed Without a Will
If a person dies in Alberta without a will and has a spouse or adult interdependent partner, as well as children from that relationship, the entirety of the deceased’s estate will be inherited by the spouse or AIP. This is as opposed to being divided between the spouse or AIP and the children.
Under the Act, it is presumed that the deceased intended to give their entire estate to their spouse or AIP and have them assume responsibility for the children’s welfare. For instance, if a person dies without a will and leaves a common-law spouse with a financially independent adult child, the common-law spouse will inherit the entire estate based on the Act.
How Are Intestate Estates Distributed if There Are Children From Another Relationship?
Under Alberta’s Wills and Succession Act, estates without a valid will are distributed in a specific order of priority.
- If there are children from another relationship: The surviving spouse is entitled to a preferential share — $150,000 in 2025 — plus a portion of the remaining estate. The share depends on the number of children from the other relationship.
- If there is no spouse or children: The estate passes to other relatives in order of proximity, beginning with parents, then siblings, and finally more distant relatives.
Although the Act aims to ensure fairness, intestate distribution may not always reflect the deceased’s personal wishes.
How the Presumption of Survivorship Works
In cases where the exact timing of two individuals’ deaths is uncertain, a new presumption comes into play—it is assumed that each person passed away before the other. As a result, each individual’s estate will be inherited by their respective heirs rather than transferred to the other person’s estate.
Furthermore, any jointly owned property will be converted from joint tenancy to tenancy in common. This ensures that half of the property is distributed to the respective estates rather than included in the other individual’s estate. This rule, however, does not apply if the Will explicitly states otherwise.
Temporary Possession of Matrimonial Home
After the death of a spouse or AIP, the survivor is entitled to stay in the family home for 90 days, starting from the date of death. If necessary, this period can be extended by way of a court order.
This entitlement remains valid regardless of whether the home is rented, owned by someone else, or jointly held by the deceased and another person. During these 90 days, the estate pays for associated expenses.
For instance, if a husband co-owned the home with his mother and died, his wife is entitled to reside in the home for 90 days, during which the estate will cover any expenses associated with the home, such as mortgage payments or utilities.
Dependents’ Relief Claims / Family Maintenance and Support
Dependents not adequately provided for in a deceased individual’s will can apply to the Courts for a larger share of the estate. If successful, the Court can adjust the distribution to ensure necessary support.
Eligible family members include:
- Spouse
- Adult interdependent partner
- Minor child
- Adult children with a physical or mental disability preventing them from earning a livelihood
- Adult child under the age of 22 who was being supported by the deceased at the time of their death
- A minor grandchild or great-grandchild of the deceased, if the deceased acted as the child’s guardian.
Contesting a Will Under Alberta’s Wills and Succession Act
The Wills and Succession Act of Alberta provides several grounds for contesting a will when the deceased’s estate distribution appears questionable. Family members, including a spouse, adult interdependent partner, or adult children, may challenge a will if they believe the deceased lacked testamentary capacity or was unduly influenced.
- Filing a will contest: A person contesting the will must file an application with the court within six months of the grant of probate. The personal representative must then defend the will-maker’s expressed intentions against such a claim.
- Grounds for a successful challenge: Successful challenges often involve proving the deceased suffered from a physical or mental disability affecting decision-making or demonstrating undue pressure from beneficiaries. The court may appoint a judicial trustee to manage the estate during litigation.
- Considerations for separated spouses: For separated spouses who are not yet divorced, contesting becomes particularly complex as the Matrimonial Property Act may interact with succession laws. Contrary intention must be clearly documented to overcome presumptions established in the Act.
Advances to Beneficiaries
If a deceased individual transfers money or property to a beneficiary throughout a lifetime, it can be argued that these transfers were not intended as gifts but rather as advancements toward the beneficiary’s eventual share in the estate. If this claim proves successful, the beneficiary’s portion of the estate may be proportionally reduced, or the beneficiary may be required to repay some or all of the transferred assets.
Funds Owed to Estate
In your will, you can stipulate whether loans made during your lifetime are to be forgiven or are required to be paid to the estate. We can assist you in drafting a will to reflect your intentions.
How Driessen De Rudder Law Office Can Help
The Wills and Succession Act covers many important estate matters, including wills, intestate succession, survivorship rules, dependants’ claims, and beneficiary rights. Understanding how these rules apply can be challenging, particularly when administering an estate or planning for the future.
If you have questions about the Wills and Succession Act or how it may affect your estate plan, contact Driessen De Rudder Law Office to discuss your situation and available options.
Frequently Asked Questions
What Makes A Will Legally Valid Under Alberta’s Wills And Succession Act?
A valid Will in Alberta must be in writing, signed by the person making the Will (the testator) with the intention that it be their Will, and witnessed by at least two people. In certain cases, if formal requirements are not met, a court may nevertheless accept a document as a Will if there is clear evidence that the testator intended the document to be their Will.
What Happens If Someone Dies Without A Will (Intestate) In Alberta?
If a person dies without a Will, the estate is distributed under the intestacy rules in the Wills and Succession Act. First, any debts and obligations are paid. Then the estate is divided among the spouse or adult interdependent partner and children according to a prescribed order. If there are no spouse, partner, or children, the estate may pass to parents, siblings, or more distant relatives in a defined hierarchy.
What Are The Duties And Responsibilities Of A Personal Representative (Executor) In Alberta?
A personal representative must identify, gather, and manage the deceased’s assets; pay debts, expenses, and taxes; notify and deal transparently with beneficiaries; and distribute the estate according to the Will or, if there is no Will, under intestacy rules. They must act in good faith and in accordance with provincial law and may need to obtain probate or a grant of administration if required.
Can Eligible Family Members Make Claims For Support If They Receive Little Or Nothing Under A Will?
Yes. Alberta law allows certain dependents—such as a spouse, an adult interdependent partner, or a minor or disabled child—to apply for adequate provision from an estate if the Will or an intestacy distribution does not make reasonable provision for their maintenance or support. The court considers factors such as the relationship to the deceased, financial needs, and the size of the estate.
What Are The Risks And Rights When Challenging A Will Or Contesting Estate Distributions?
You have the right to challenge a Will or distribution if you believe there are legal grounds—such as improper execution, lack of capacity, undue influence, or failure to meet support obligations. Risks include strict legal deadlines, the cost of litigation, and the possibility that your claim will be dismissed if the evidence is weak or not preserved. Courts will carefully assess fairness and whether the deceased’s intentions were properly reflected.