Something I hear quite often from people is that they are not going to make a Will because they are married and they believe that everything they own will, because of the fact that they are married, go to their spouse when they pass away. Unfortunately, this is not necessarily the case.
Every province and territory in Canada has a law which says what happens to the property of someone who dies without a Will. In Alberta, it's the Intestate Succession Act. This law works together with other arrangements you've made, such as beneficiary designations (in insurance policies, RRSPs, pension plans etc) and joint titles (such as on your home or cottage). This combination of laws will decide who gets what from your estate when you pass away without a Will.
When you pass away, if you are married and everything you own is either in joint names with your spouse or designates your spouse as the beneficiary, then yes, your spouse will get everything you own. If you have any assets that are in your own name, then those assets are governed by the Intestate Succession Act.
The Act says that if you pass away leaving a spouse and one child (legitimate or otherwise, a minor or adult) then your spouse gets the first $40,000 of your assets and the rest is split evenly between your spouse and your child. If you leave a spouse and more than one child, the spouse gets the first $40,000 and one third of the rest. The other two thirds are divided equally among the children.
Note that this distribution includes children of previous relationships as they are your biological children. It also includes adult children with whom you might not have a relationship at all.
If you still have, for example, a life insurance policy that names your first spouse or your parents, that policy will still be paid to your named beneficiaries. If you own a cottage with your brother as joint tenants, the cottage will go to your brother and your spouse will not inherit any share of the cottage.
People are often surprised, and not always in a good way, when they realize how intestacy laws would apply to them and their families. It is a huge mistake to assume that you know how the law would apply to you when you have never asked a lawyer. If you have a family, you should have a Will properly prepared by a lawyer.
When you pass away, if you are married and everything you own is either in joint names with your spouse or designates your spouse as the beneficiary, then yes, your spouse will get everything you own. If you have any assets that are in your own name, then those assets are governed by the Intestate Succession Act.
ReplyDelete----can you please help me more understand..because i can not see this in the succession act.. Iam concern because my uncle pass away without a will and his legally adopted son want to take his share. how about if the property is outside Alberta?
You are not going to find my statement verbatim in the Intestate Succession Act because it's a combination of several laws working together. Hopefully this answer will help you see how they fit together.
ReplyDeleteTo clarify the first part of this, if your uncle owns anything in joint names - whether that is his house or his bank account etc - that item goes automatically to the other joint owner (section 121 of the Land Titles Act).
If your uncle owns anything that designates a beneficiary - such as a life insurance policy or RRSP - that item goes to the person who is named on the item itself (section 580 of the Insurance Act).
So if you look at everything your uncle owns, then take away his joint assets and his assets that designate beneficiaries, that leaves you with assets in his own name.
These assets are normally dealt with by a Will but your uncle didn't have one. This is where the Intestate Succession Act comes in.
You didn't mention whether your uncle is married, so I'm assuming that he is not. Note that a spouse doesn't have to be legally married to your uncle. If he lived with someone in a relationship of interdependence for three years, that person qualifies as a spouse. An adopted child has the same rights for inheritance purposes as a biological child.
To apply the Intestate Succession Act, we look first to see whether your uncle has a spouse (section 3 of the Intestate Succession Act). As mentioned above, I am assuming he does not.
Where there is no spouse, we look to children (section 4). I know there is one son. If he is the only one, he is entitled to the whole estate. If there is another child(ren), the estate is divided equally among them. If there was a child who died before your uncle died, that child's children take the child's share.
I'm also assuming that you are acting as the administrator of this estate. If so, please be careful in applying this advice to your situation, because I don't have the full facts about the family or about the assets. This is general information which I really hope is helpful, but you should probably sit down with a lawyer and give the full story to make sure nothing is missed.
Best of luck,
Lynne
my biological father passed away in February, a few days ago my half sidter requested that I fill out and sign a document stating that he has been mentally unstable and addicted to drugs since 1998. I first met him in 1998 and he was not mentally unstable or addicted to drugs at that time. I maintained a relationship with him up until the day he died, I spent his last two weeks in the hospital with him. I do not know what is happening with his estate but I think there may be a will mentioning myself which is why I am being asked to sign this document, the final line reads-I have no interst in his estate. I refuse to sign this document but I do not know how to go about finding out if I am mentioned in his will or if there is a valid will. I did see handwritten will in which I was mentioned and this is why I think I am being as to state my father was unstable. Any advice you can offer would be appreciated.
ReplyDeleteIn my view, you were right not to sign any documents because you haven't yet been fully informed of what is going on. The document with the sentence about having no interest in your father's estate might have been intended to have you waive your inheritance, or it might have been intended to have you renounce any right to apply for Letters of Administration.
ReplyDeleteIt sounds as if your half-sister is either acting as an executor under a Will, or as administrator who intends to apply for Administration.
You need to see a lawyer. If the Will you saw is valid, you might be entitled to a share of the estate. If there is no Will, the estate will be distributed according to intestacy laws, and as a biological child you are entitled to a share.
I urge you to find a Wills and Estates lawyer who will, first of all, find out what's going on and whether there's a Will. Once you have a handle on that, you and the lawyer can decide whether anything should be done, and if so, what. I wish you the best of luck.
When one half of a couple passes away in Alberta,not having a Will. Do they freeze bank accounts, or stop you from selling property that is in both your names.
ReplyDeleteIf you have a bank account that is jointly owned by you and the deceased person, it should not be frozen. Accounts that belong just to the deceased person may well be frozen. Same thing for a house or other assets that are held as joint owners with right of survivorship, i.e, you can deal with them. Because there is no will, you (or another family member) will most likely have to apply to the court to be appointed as administrator of the estate. Once that has happened, you can deal even with the assets that are frozen.
ReplyDeleteLynne
I just found out that my husband cut me out of his will 12 days after our youngest child was born!He always used to say that I will be a very rich woman after he passes away and now I find out that even though technically he leaves everything to the kids he names his 68-year-old father and later his estranged sister a sole Executor.The will actually mentions something about "no payment be made to the Guardian",meaning me.Was it even legal for him to do that if we are still married?I never needed anything for myself but I wanted to protect my kids' rights and I have no faith in my husband's sister to do right by my children when the time comes.
ReplyDeleteWell that's a heck of a thing to find out about your husband. That would throw anyone for a loop.
ReplyDeleteYou didn't mention which province you're in, but there are general rules that apply across the board. Sure, it's legal for him to change his will. The bigger question is whether the will would stand up in court. All parts of Canada provide that a spouse can't simply be cut out of a will. Because you are married (or common law) he has an obligation to you, and vice versa.
This means that if he should die with that will in place, you will automatically have a right to contest the will to get a share of the estate. I'm not advising you to do that, as I don't have all the facts, but I am letting you know that in Canada, we can't simply cut out spouses without them having something to say about it.
Unfortunately, contesting a will is an expensive, time-consuming, emotional process.
I've never seen the "no payment to a guardian" clause used when people are still married, but yes it's possible to do that. It doesn't mean that the kids won't be supported from the estate (if they are minors), it means that trust funds for the kids would be managed by the executor rather than by the parent (i.e. you).
What an uncomfortable situation for you. I sincerely hope you two figure out what's at the bottom of all this and set things on the right path again.
Lynne