Stringam LLP. Alberta's Regional Law Firm Wills and Estates

What Happens When You Don’t Have Any Estate Planning Documents

Simple estate planning typically involves a valid Will, a Personal Directive and an Enduring Power of Attorney.

  1. Your wishes are followed, either in the event of incapacity or after death;
  2. Your family and loved ones are properly taken care of; and
  3. The administration of your estate occurs as smoothly and as cost-effectively as possible.

In addition, there are many other potential consequences when a person dies or becomes incapacitated without having these documents in place

What is a Will and what happens when you don't have a Will?

In Alberta, if a person dies without a Will, the Wills and Succession Act specifies that, in general, a deceased’s estate will be dealt with according to the following table:

Married or common law, with no children All of estate to spouse
Married or common law, with children All of estate to spouse
Married or common law, with children from different relationships One half of estate to spouse or adult interdependent partner, One half of estate split equally to children or issue
Not married or common law, with children All of the estate divided equally amongst the children
Not married or common law, without children All of the estate divided equally between parents or survivor
If no parents All of the estate divided equally amongst brothers and sisters
If no brothers or sisters All of the estate divided equally amongst nieces and nephews
If no nieces or nephews All of the estate divided equally amongst your next of kin
If no next of kin All of the estate to the Province of Alberta

Some of the problems that may be created when you die without a Will are:

  • Your spouse may not receive the desired amount or too much;
  • Your children may receive too much too young (their money is held in trust until they reach the age of majority, then they receive the total amount);
  • Handicapped children may not receive enough for their care and support; and
  • No control over which beneficiaries receive which assets.
  • The executor looks after the administration of the estate. Without appointing an executor in your Will, the Court will appoint an administrator for your estate based on who applies, and that person may not be the person whom you would have chosen to administer your estate.
  • Having an unintended administrator may create conflict within your surviving family, potentially leading to estate litigation and significant expenses.
  • A guardian looks after the emotional and physical well-being of your children. In your Will you can appoint a guardian.  Without appointing a guardian, the Court will appoint a guardian for your children based on who applies, and that person may not be the person whom you would have chosen to care for and protect your children.
  • This point is particularly important where you may have concerns about your child’s other biological parent or want your spouse (who may be a custodial adult through second marriage but not your child’s biological parent) to be the guardian of your child.

What is a Personal Directive (PD) and what happens when you don't have a PD?

Once the appointment comes into effect, the person(s) you designated can make decisions on your behalf relating to any or all of the following: your health care; where you live; with whom you live and associate; your participation in social, educational and employment activities; and legal matters that do not concern your property and assets.

Without a Personal Directive, to make personal decisions on your behalf, a person must apply to the Court to become your Guardian.  Unfortunately, the application process is cumbersome and requires the aid of a layer, resulting in extra expenses.

What is an Enduring Power of Attorney (EPA) and what happens when you don't have an EPA?

An Enduring Power of Attorney typically does not come into effect until you lose capacity.  Once the appointment comes into effect, the person(s) you designated can manage your financial affairs by, among other things: paying bills; depositing and investing your money; and maintaining or selling land and other property.

Without an Enduring Power of Attorney, to make financial decisions on your behalf, a person must apply to the Court to become your Trustee.  Unfortunately, the application process is cumbersome and requires the aid of a layer, resulting in extra expenses.  Additionally, until someone is appointed as your Trustee, no one will be able to manage your property or use the same for your care and support.

Final Note

Laws change, and personal and financial circumstances change.  Accordingly, you should review these documents on a regular basis and especially after major life events (such as marriage, divorce, children, etc.) to make sure they still reflect your wishes.

Need to create a Will, PD, or EPA?

Or, update your existing estate planning documents?

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Written by Joe Eisenlohr

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