Wills and Succession Act Alberta

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An Overview of the Wills and Succession Act of Alberta

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. 

Driessen De Rudder Law Office is committed to providing the guidance you need every step of the way. We recognize the importance of keeping your possessions safe and respecting your wishes. Our wills and estates lawyers are ready to guide you through the intricacies of the Act, offering solutions that perfectly match your unique needs.

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 that addresses wills, intestacy, survivorship, dependents’ 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.

Wills and New Marriages or Cohabitations

The Act also covers how marriages and interdependent adult relationships affect wills. Under the Act, entering into a new marriage or relationship with an adult interdependent partner (AIP) does not automatically invalidate a will.

To be considered an AIP, individuals must have either entered into an AIP agreement or cohabited in an interdependent relationship for a significant period and have a child together. Alternatively, they must have cohabited for at least three years, even if they do not have children through their relationship.

The Effect of Divorce or Separation on Wills

Unless the will-maker expresses a different intention, the Act considers an ex-spouse or former Adult Interdependent Partner (“AIP”) to have passed away before the will-maker. Consequently, the former spouse or AIP is ineligible to receive gifts outlined in the will or serve as an executor or trustee. The appointment as guardian for minor children is also rescinded. This can be tricky if the parties have just separated but have not divorced or severed their AIP status. If you are separating, contact our counsel immediately to discuss options.

The Act pertains solely to wills and does not affect beneficiary designations on RRSPs, RRIFs, TFSA, pensions, or life insurance policies. Divorce or separation does not impact such designations. It is crucial to update beneficiary designations to ensure that the ex-spouse or former AIP does not receive the asset.

As an example, consider a situation where a wife dies. If she and her husband had been living separately for three years before her death, but they had not yet officially finalized their divorce, any gift mentioned in the wife’s will would remain legally valid and applicable to the husband. On the other hand, if no will exists, the husband would not have any entitlement to inherit any of her assets or possessions. 

Distribution of Estates on Intestacy

If a person’s 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.

Survivorship Presumption

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 instead of being included in the estate of the other individual. 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, in the event of a husband’s death, if he co-owned the home with his mother, 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.

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 the will to reflect your intentions.

Ensure Fair Distribution of Estates With Driessen De Rudder Law Office

Estate distribution can be complex and seemingly overwhelming. Intestacy, survivorship presumptions, temporary possession of family homes, dependents’ relief claims, and advancements to beneficiaries must all be considered.

At Driessen De Rudder Law Office, we understand the importance of fair and impartial estate distribution. We are here to provide you with our unwavering support and help. With a transparent and client-centered approach, we ensure you are well-informed at every step of the process. 

Our experienced Barrhead estate planning lawyers will also guide you through the entire estate planning process, ensuring your loved ones are properly cared for. Contact Driessen De Rudder Law Office today for a consultation, and let us discuss your options.

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