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Sunday, May 1, 2011

Alberta's new Wills and Succession Act - part 1

There are big changes coming to wills and estates law in Alberta. Our new Wills and Succession Act (WSA)is expected to take effect in January 2012. Over the next few weeks I'll write a series of blog posts to let you know what's coming. When you read the posts, think about whether the changes could affect you, and perhaps talk to your wills lawyer to find out for sure.

The first change that I'll tell you about has to do with a spouse having possession of a deceased person's home. In Alberta we have the Dower Act, which talks about the situation where a man and woman are legally married and the house is only in the name of one of them. If the one who owns the house dies, the other spouse has a right to live in the house for the rest of his or her life. That hasn't changed. But what about common law couples? The Dower Act doesn't apply to them.

The new WSA talks about that, which is completely new to Alberta law. It says that the spouse can stay in the house for at least 90 days after the death of the spouse who owned the house. The situation must be that:
- the deceased spouse is the one who owned the house
- it can be a house, condo, apartment, mobile home, etc
- the couple must have been Adult Interdependent Partners (Alberta's equivalent of common law spouses, and usually means they must have lived together for at least 3 years)
- the couple must have lived in the home as their family home

This isn't likely to be a problem if the deceased spouse made a will and left the house to his or her surviving spouse. But it's important if there isn't a will.

It's also important if the spouse who owned the house was in a second marriage. Often, in second marriages the spouse wants to leave his or her estate (including the house) to the children of the first marriage. If there was no right to stay in the house for a period of time, which until the new law comes into force is the case, then the surviving spouse has to pack up and get out ASAP so that the children can inherit.

Having observed first hand through my work how cold the children of a first marriage can be towards a step-parent, I'm in favour of this change. It will give a least a short breather for the surviving spouse to make plans to live elsewhere.

8 comments:

  1. what does it mean when a mobile home is in probale in alberta

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  2. My parents were divorced in 2005,my mother was co-owner of their farm. She battled getting her share of the farm up until her death in 2008.my mom left her share of the farm to her children in her will.My father has refused to cooperate. Remarried&moved with his wife to farm home after years of living most of the time with her at her home in the city. As soon as we hired a lawyer,they sold her home & moved to farm & made major renovations.shortly before this move,my father was planning on selling farm but kept putting it off to wait for spring,or fir the market to improve. We believed him.we were informed by a lawyer that we wouldn't be able to get our share of farm that our mom left to us in her will. How could this be the law? Comments appreciated.

    ReplyDelete
  3. My daughters aunt died last year and was extremely close to and adored my daughter. This aunt was extremely generous with her money especially with my daughter.ved to spend money on my daughter. during last few days of her aunts life my daughter was with her 24hrs a day as was her husband. Numerous times the aunt asked my daughter to look thru her will.my daughter would not....now she wonders what was in the will because she has received nothing not even a keepsake. There are no children my daughter was like hers. When her aunt died she was with her uncle 24 / 7 she did all the planning and prep with him.while there a call came in that there had been an account set up at royal bank for my daughter and her uncle had no idea about it. He followed up and told her it was a mistake there was nothing! Anyway I need know how my daughter can gain access to info contained in her aunts will and this possible bank account. My daughter is 22
    Thanks we live in Edmonton Alberta

    ReplyDelete
    Replies
    1. Your daughter can only gain access to information about what was in her aunt's will and in her estate if your daughter is a beneficiary. People who are not beneficiaries are not entitled to know what is in the estate, and yes this is the case even when people were very close.

      You don't actually say who is the executor but I assume it is the uncle. Your daughter has already taken the correct step by asking him for information. If for some reason she doesn't believe what he tells her, she can ask for confirmation in writing that she is not a beneficiary.

      It's possible to search at the local courthouse to see whether the will was filed for probate. However, there may not have been a probate if the aunt did not have the kind of assets that require probate. For example, if her home was held jointly with her husband, there would be no need to get probate for the house. Most couples set things up so that when one of them dies, the other doesn't have to go through probate. Your daughter can still do a search, but should not be surprised if nothing turns up.

      I know it can be extremely hurtful when someone who was close to you passes without even leaving a keepsake, but people continue to make wills which don't address such things.

      Lynne

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  4. My husband's grandmother just passed away and she was married but her husband is in a personal care home and has been for the last 5 years, does he have any claim to the residual estate or will this pass to her children.

    HELP

    ReplyDelete
    Replies
    1. What difference does it make where he lived? Of course he has a claim to the estate; he was her husband.

      Lynne

      Delete
  5. My dad is leaving everything to his wife in his will. I am an adult but living in what used to be our family home. I also have disabilities and am on benefits. Can my stepmother sell/subdivide and leave me homeless as soon as my father dies?

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  6. My husband and I bought our matrimonial property together as joint tenants we lived in the home together for 8 years, there was a breakdown of the marriage and I left the home after 3.5 years we tried to reconcile however he had a major heart attack and passed away June 17 2014, his girlfriend of less than 2 years was staying at the house, his adult daughter from his previous marriage retained a lawyer stating she is the administrator of his estate, the property was transferred into my name as the surviving joint tenant, the adult children and girlfriend want 1/2 the house including the insurance proceeds paid to the bank and the girlfriend is still in the house, I have consulting with numerous lawyer some not knowing what to do, others wanting large retainers with no plan, I have called the court house and was told to seek legal advice, it is not a landlord tenant issue under civil law and it is not common law under family law and estate law because they were together less than 3 years, he did not have a will, we didn't sign anything severing the joint tenancy and I have dower rights in the matrimonial home, how do I get back into my home?

    ReplyDelete

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