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
My brother in laws father died in Nova scotia, without a will, his mother was not married to him( she was still married to another man) but they had lived together for over 30 years, they had one son together, but there are 2 half brothers from her legal husband, she then dies also with out a will, what needs to be done , and who is legally the heir to the fathers property( value approx 18,000.00)
ReplyDeleteHi. I don't practice law in Nova Scotia, but I'll tell you wnat I think based on what I know about their system. It would be a good idea for the common-law wife and her son to consult a lawyer in NS.
DeleteA common-law relationship is not recognized for the purpose of intestacy in NS, which leaves out the common-law wife, so the father's estate should be going to his son. The son and the common-law wife should decide between them who is going to administer the estate. Depending on the type of assets, it's very possible that there will be no need to have the courts appoint anyone as administrator.
I am living in Newfoundland and my mom is very ill. She does not want a will. I have a brother and sister living with her are they entitled to everything she owns because they are living with her? My Dad passed away two years ago.
ReplyDeleteHi. I'm sorry to hear about your Mom. This time is stressful, I know.
DeleteI don't know why your Mom wouldn't want a will, since it could prevent a lot of disputes, but if she doesn't want one, nobody can (or should) force her. Perhaps she just doesn't want to worry about legalities and money and wants to focus her time on her family.
When someone in NL passes away without a will, the estate is distributed according to the Intestate Succession Act. You can see it for yourself at www.canlii.org. As your dad has already passed away, your mom's estate should be divided equally among all of her children. If one of her children has passed away before her, that child's share goes to the child's children (your mom's grandchildren).
The fact that your siblings live with her shouldn't have anything to do with the size of the share they get.
It sounds like your mom owns a house. If so, and she passes away without a will, one of you will have to apply to the court to be appointed as her administrator.
lynne
My father died in 2011 and lived common law for 10yrs. He did not have a proper will. We are his 4 children. He had the paperwork ready to make my brother executor and had spoken with him on this before he had an accident and died 3 days later. At the time, my father being the advocate for many community causes had concerns that he may be sued and he put his common law wifes name on the deed of the house that was fully paid for. He had $16,000 in his personal account. The wife divided the $16,000 between us 4 kids giving us $4000 each.The wife wasnt able to keep the house for financial reasons so she sold it for a $200,000 profit. When dad first passed away, we discussed this issue with her as she wanted to know what we kids thought was fair (she came into this relationship with nothing and walks away with all of our fathers assets which will be passed on to her children which we feel is not morally right. She asked us what we thought was fair and we replied that we feel she should be entitled to half the proceeds of the house sale with the other half divided amongst us 4 children. She was put on the deed of the house to protect the assets as my dad thought there may be a lawsuit coming that would affect his property ) We are reasonable people and she does deserve to be looked after yes, but now that the house has sold and closed a week ago, we hadnèt heard from her as to what she was going to give us kids. Last night we found out she wants to give us $3000 each from the $200,000. That comes to a total of $7000 per child for a total of $28,00 to his kids and she walks with almost the full profit from the sale of the house and we feel its not morally right. We discussed with her what we felt was the right thing to do and that dad wouldnt have agreed to a 95/5 split. Told her to keep the $3000 cheque and sit on it and think about doing the right thing and do the right thing to honour our fathers legacy. Don't know what is going to happen next but do we kids have any hope of proving to a judge that our fathers intentions were not to have her walk away with pretty much the whole shootin' match? We are struggling and he was our father! We have been very patient with her while the house was up for sale for over a year and a half. She's moved on with her life and all our dads money! It may be this cut and dried in a court of law but I would like to know if we have a chance of disputing this. Thank you for reading and hope to hear from you.
ReplyDeleteIs it possible to have a person's name removed from financial accounts etc. because they are mentally ill? My sister-in-law is a very out of control addict. My brother has a few businesses plus their personal stuff. Is it possible to have her name removed from things due to her mental state? Family doctors have said they would back my brother however, I am not sure if a doctor's observation/letter carries weight.
ReplyDeleteYou can't remove someone's name from something she legally owns because of mental illness. However, that doesn't mean there isn't a way to deal with this.
DeleteYour brother can be named to legally deal with her assets on her behalf. This would mean that she would still have ownership, but that she would not have access to the assets and therefore wouldn't be able to spend or damage them.
Usually this is done by a power of attorney but I'm not sure that would work in this case. A power of attorney would require your sister in law to have the mental capacity to sign the document voluntarily.
If that isn't going to happen, your brother can apply to the court to be appointed as a trustee for her assets, and if necessary, a guardian for her as well. This is where the doctors would come in. You can only get trusteeship or guardianship for another adult if that adult is incapacitated, as evidenced by a doctor's report.
If your brother wants to see if either of these ideas would work for his situation, he should see a lawyer who does this kind of work.
I hope it all works out.
Lynne
i feel like i am in the same position cuz i feel like if my dad having an affair and if he dies our house is going to be spilit in half and i'm worried sick every day .. dont know what to do :(
DeleteSarah, it sounds as if the weight of the world is on your shoulders. I wish I could make you feel better. The fact that your dad may or may not be having an affair may not have any impact on what happens to your house. I assume that you live with both of your parents and you are worried about your home possibly having to be split between your mom and another woman. However, just being someone's girlfriend doesn't entitle a person to part of the estate. If your father is having an affair and if he did pass away, the other woman can't claim anything just because they were involved. He would have to be married to her, or at least be living common law with her.
DeleteLynne
My Dad died without a will and he was paying on a car. My mother has no license and cannot afford to pay for the car. I called the finance company and they told me they cannot discuss any details if there is no will and no executor. What should we do?
ReplyDeleteFirst of all, make sure your mother understands that if her name was not on this car loan, she does NOT have to pay it. For a while the bills will continue to arrive at the house, addressed to your father. You have already advised them that your father has passed away so now the ball is in their court.
DeleteIf the bill goes unpaid, the finance company may choose to re-possess the car. Realistically though, they want the money, not the car. In which case, they are going to have to talk to you or your mother sooner or later.
None of this affects your mother's credit if her name isn't on the loan.
Lynne
hi lynne i need you'r help badly we are living in manitoba canada but its been few years that i found out my dad is suspicious .. he says his not been with anyone but once this lady claimed to be his wife and his been active in few dating site ... he says his going to give us a will and put our name as a beneficiary ... i just wanna know if he give us a will can our inheritance be protected ? or if he dies can her wife get's everything or at least half of it ... :)
ReplyDeleteOk, I have no idea what you mean by it's been a few years since you found out your father is suspicious. I'm ignoring that bit.
DeleteI certainly hope your father makes a will, since even his own kids don't know whether he's married. Seems like it could be pretty confusing when he passes away.
If your father makes a will that names you kids as his beneficiaries, and it turns out that he is married, the wife can make a claim to get some or all of the estate. She would have to prove either that she is married to him, or that she qualifies as a common law wife under Manitoba law.
With proper planning and advice, a lot can be done to reduce the chance of this kind of claim and to ensure that your father's wishes are carried out. He should not make a do-it-yourself will as he needs to discuss his plans with a lawyer. A lawyer with some experience in this area can help figure out who is involved in the estate and how to make sure that your father's wishes are carried out.
Lynne
Hello Lynne:
ReplyDeleteMy father died suddenly almost 2 years ago. He did not leave a valid will ( started one ).He was married to my mother and I have one sibling. Would the Intestate Succession Act be applied to his assets ( savings, rrsp investments, etc. )As well, there is a civil lawsuit concerning his death. In the event of a settlement, would the assets be divided according to the Intestate Succession Act ? Many thanks for your advice.
Hi Sarah,
DeleteYes, if your father died without a valid will, the laws of intestacy that apply in your province will be used to figure out how his estate will be distributed.
You mentioned RRSPs. These assets, as well as pensions, life insurance and some other assets usually name somebody as the beneficiary. If your father has named someone, those assets are not in his estate and are not governed by the intestacy laws.
Yes, any proceeds of a civil suit that are payable to your father (or his share of a settlement that involves more than one person receiving funds) will be paid to his estate and divided according to the law.
Someone will have to apply to the court to become your father's estate administrator. It seems odd that in the two years since he died, nobody has done that.
Lynne
Hello Lynne:
ReplyDeleteThis is Sarah again. I have another question for you.Are offspring entitled to know the contents of the deceased's estate before it is settled.( again my father died intestate) As mentioned, my father passed away almost 2 years ago and I have yet to be have been informed of the value of his estate. Should I contact the lawyer dealing with this ? I assume that my mother has become the estate administrator although I have not been informed of this. As you can probably see, I feel that I am being left out of some decisions and information sharing dealing with this matter. I appreciate again your thoughts and advice on this.
In Alberta can you contest the intestate law? Background
ReplyDeleteFather stopped talking to son 10 years ago but had a relationship with daughter. The deceased had no will. The deceased daughter "thinks" the deceased son doesnt "deserve" anything and apparently she is gathering extensive extrinsic evidence to make sure the deceased son gets nothing.
In my opinion, the daughter will have a tough time with her case. The law is not based on who deserves what; it's based on the blood relationship. If this were in BC, she might have a much better chance.
DeleteLynne
I am in British Columbia. My mother passed away in April 2013 (in British Columbia). She had a will that apportioned 55% of her estate to her husband (my step-father). However, her husband predeceased her 3 years earlier. Is the will still valid? And if so, what happens to the 55% allocated to her husband? She apportioned the remainder of her estate: 30% to be split amongst her siblings, and 15% to be divided amongst her children (my 2 sisters and I). Any advice you can provide would be much appreciated.
ReplyDeleteRegards,
LouLou
Hi,
DeleteYes the will is still valid even though a beneficiary passed away before your mother did (assuming that it was valid to start with).
To find out what happens to the 55%, read the gift to her husband in the will. If it was a will made by a lawyer, it should have what is called a "gift over". This means it should say, for example, if my husband survives me by 30 days, he gets 55% of the estate, then goes on to talk about what happens if he does not survive that long. That would be standard in even the simplest will.
If for any reason the will doesn't say anything about what happens to the husband's share, it is most likely going to fall back into the general estate and be distributed as part of the residue (which you have referred to as the remainder).
If you are the executor, it would be worthwhile for you to sit down with an estate lawyer who can read over the will with you. The wording in wills varies so much, and even one little word can make a difference.
Lynne
Dear Lynne ~ my family and I are hoping you may be able to provide us with some advise. Our mother passed away 8years ago in Alberta without a will. Her "estate" was left to her husband who has now also passed away (1 year ago)in Saskatchewan with no will. To date we have not been advised of how our step-fathers "estate" was settled and presume our 2 step sisters have divided the funds amongst themselves. My sisters are wondering if this is legal? We realize the estate laws are different from province to province, but we feel we should be considered in the settlement of our Mother's & Step fathers estate as well. As mentioned our step sisters haven't contacted us regarding the estate. We're really struggling with how to handle this situation. Any suggestions or advices as to how we should pursue? Has too much time passed to pursue the estate? Appreciate any advices you may have. Thank you
ReplyDeleteThe reason this seems confusing to you is that you are thinking of the estate as belonging to your mother and step-father. It no longer has anything to do with your mother, as you said she died 8 years ago and left the estate to her husband.
DeleteNow that he has passed away without a will, his estate will pass to his heirs according to the laws of intestacy in his province. The law of intestacy does not include step-children. Therefore there is no reason why his children should have contacted you regarding the division of the estate.
The error here, in my view, was in your mother's planning. Quite often, people who are in second marriages will set up their wills so that at least part of their estate will go to their children, and not all to the second spouse. However, it's quite possible that she believed her husband would make a will leaving something to you, and who knows, if he had made a will, perhaps he would have done that.
I know this isn't the answer you wanted, but this is how I see it.
Lynne
Hi Lynne and thanks for your great blog....You are helping many people by providing these articles and opinions for all to see. I have a quick question: My mother-in-law purchased a car while married (to her third husband). It appears as if they split on the price of the car however the ownership is in her name. She has recently passed away. What should happen with that car? Does it become her husband's or does it get sold with the proceeds going to the beneficiaries?
ReplyDeleteHi James. Thanks for the kind feedback.
DeleteIf the car is solely in your MIL's name, it belongs to her estate. If the beneficiaries agreed (in writing) to give it to her husband, the executor could do so. Otherwise it is sold and divided as you mentioned.
Lynne
Thanks Lynne for the quick reply!! I have since been told that the ownership of the vehicle is in both their names. Does this make any difference moving forward?
ReplyDeleteHi, My step-father, Canadian, died almost 10 years ago. He was married to my Costa Rican mother and he was very close to his retirement at the time of his death so he was living mostly of the time in Costa Rica. He came to Canada for a few days to sign papers for his retirement and suddenly got a heart attack and died in Edmonton. My step-father unique brother called my mom and told her not to go to Canada because there were no laws to protect her or to give her rights (he thought they were no married). The case is that I traveled with my mom to Canada and we paid funeral and bills from his cell phone and Red-Cross that none of his relatives paid. I discovered that this guy (his brother) had told the funeral home to release a death certificate saying that he (the brother) was the only survive relative alive. Soon I discovered it I asked for a new certificate indicating the name of my mother. My step-father had a car and other things that we did not know totally because he did not have a will. My mother receives a pension from the Government of Canada and she got (because she was the beneficiary) everything from his work association. However, his brother (who had no good relation with my step-father) did not tell us nothing about his car or any other heritages that they could have together from their mother, who was alive at that moment but suffering of Alzheimer. A coworker of my step-father told me to wait 10 years and to check at the central bank in Canada if they can investigate about any frozen account, savings or whatever else under my step-father’s name, so my mother can check if there is something else she can have the right to ask for. Is this true? How can we investigate what happened with my step-father car, house which belonged to his mother, and any other things? Also, My younger brother was legally adopted by my step-father. Thank you for help.
ReplyDeleteHi Lynne, My brother in law(sister's husband) died without will. This is in Ontario, Canada. He has 2 children both above 18 one of them is married. He has some bank accounts and govt is his trustee. only one bank account is under govt trustee. None of bank accounts are joint so my sister cant have access to the money. How can she have access to the money and does she have to get the lawyer as govt. is her trustee and would his daughters get the right on his money?
ReplyDeleteDear Lynne, My mother has recently passed away unexpectedly in Alberta. My mother has been married for over 20 years to someone who is not my father. My mother had told me that she has a will but when I asked her husband about her will he said he does not know what I am talking about. Now that he is saying there is no will and I have no proof of this what is going to happen to all her personal belongings. Me and my brother have never been close to her husband and he is not even talking to us about anything. Do we have any rights in regards to our mother belongings or does he just get everything?
ReplyDeleteIt's not really all that strange that a person in a second marriage would make a will without the participation or knowledge of his or her partner. I've seen it many times.
DeleteDid your mother happen to mention where she got her will made? A lawyer or law firm? If so, you could make an enquiry there. Just so you know, if your mother's will is found at a law firm, they aren't going to give it to you or even show it to you unless you are the executor named in it.
If your mother did make a will that does not leave the estate to her husband, it seems unlikely that she would have named him as the executor, so there is a reasonable chance that you or your brother have been named.
If no will is found, your mother's estate will be divided according to the laws of intestacy, which means that you and your brother will be entitled to a share of the estate.
If he is being unco-operative, you may end up hiring someone to represent you in discussions with him. Not to fight with him, but to have conversations on your behalf which would be very painful or difficult for you to have on your own.
Lynne
Dear Lynne, I am responding to your reply about my mother who passed that I wrote you about July 22, 2014. Her husband says there is no will and I have no proof at all. I have found out that the house they have was in both there names. So does this mean me and my brother get nothing. Her husband will not talk about anything with me. I am the only female in the family I would even like to have her personal items. He wont even discuss this with me. Do me and my brother have any rights in Alberta without a will from my mother. You mentioned my mothers estate will be divided according to the law. What is all classified as my mothers estate if everything is in both there names?
DeleteDear Lynne, I am responding to your reply about my mother who passed that I wrote you about July 22, 2014. Her husband says there is no will and I have no proof at all. I have found out that the house they have was in both there names. So does this mean me and my brother get nothing. Her husband will not talk about anything with me. I am the only female in the family I would even like to have her personal items. He wont even discuss this with me. Do me and my brother have any rights in Alberta without a will from my mother. You mentioned my mothers estate will be divided according to the law. What is all classified as my mothers estate if everything is in both there names?
ReplyDeleteHey Lynn. I was trying to figure out the Intestate succession law. My parents died in an accident, my father at the scene and my mother a few hours later. My siblings from my mother's first marge have taken my father's entire estate placing it into my mothers estate and then distributing it evenly between all siblings. This is frustrating because my grandpa on my father's side estate is still being settled and all property, heirlooms and cash, are going to half siblings who were moved out of home before my mother and father were married. All family members on my father's side (uncles and cousins) are very upset with this distribution of my grandpa's estate but when discussed with my siblings are simple told, "what we are doing is legal." Is the intestate succession laws really setup this way in which a family has no right to their own ancestral belongings simply because one spouse died a couple hours before another in the same accident?
ReplyDeleteHI Lynn,
ReplyDeleteMy sister died in a car accident in Alberta in July 2014.. She had no will. She was living with a guy in Alberta but was from Nova Scotia where she had a house. She owned no assets in Alberta. She bought the house while they were together. She has 4 children, 3 are from a previous relationship, 1 from the guy she was living with in Alberta. Who is entitled to her house in NS? The 3 kids are adult. Does the guy she was living with get her house and all her assets in NS? She has life insurance that was left to all her kids. She did not leave anything to the guy she was living with. Please help with any information.