September 2020 – COVID-19 Re-Opening: Caring for Our Loved Ones PART II: Passing Intestate

It is rather awkward to ask your loved ones whether they have everything in place for when they move on to afterlife. It’s not just something that gets brought up around the dinner table. However, one single moment is all it takes to effect change. 

Usually, people are prepared by having a will in place that assigns representative(s) who will manage the individual’s estate once their pass, and which allocates assets to appropriate beneficiaries. However, when a deceased has passed without a will, he is said to have passed intestate, meaning that no instructions were left as to how the property would be divided and distributed.

In Alberta, if you die without a will or if you leave property that is not disposed of by will, the Wills and Succession Actdetermines what will happen to your property. 

There are a few scenarios to consider. If there is a spouse or an adult interdependent partner in the picture and there are biological children associated, then the spouse or the adult interdependent partner are entitled to receive the entire worth of the estate. In the alternative, if the children are not biological children of the surviving spouse or the adult interdependent partner, then the estate is split 50-50 between the children and the surviving partner.

Further, if your spouse or adult interdependent partner predeceases the deceased party, then the children are entitled to share in equal portions of the estate. 

Also, if there are no partners or children, then the estate would go to the next of kin. In extreme situations, if there is no traceable next of kin available to inherit your property and assets, then the entirety of your estate would end up going to the Alberta government, where they would be used to provide university scholarship funding or funding for research.

When there is no will, or if there is a will but there is no executor, an administrator must be appointed by the Court to govern the estate. The grant issued in this case is known as the Grant of Administration. 

Under section 13(1)(b) of the Estate Administration Act, the surviving spouse or adult interdependent partner has the first priority to apply for a Grant of Administration, unless otherwise ordered by the Court. Rule 13(2) of the Surrogate Rules identifies the documents that must be filed in an application for a Grant of Administration when there is no will in place. 

No one has the authority to deal with the deceased’s estate until a grant of administration has been issued by the Court. 

There are specific forms that the potential administrator requires, in order to deal with the estate. These forms are known as the “Surrogate Forms”. Lots of information needs to be collected about the deceased, including:

  • A list of all assets and debts of the deceased and the value of these items, including parcels of land, account numbers and personal belongings;
  • Names, birthplaces and addresses for all beneficiaries;
  • The date and place where the deceased was born; and
  • The date and place where the deceased died

There are about 80 Surrogate Forms in total, but not all of them would be required for completion. The forms include four different classes, including, NC [non-contentious matters such as applying for a grant], C [contentious matters], ACC [accounting reports] and NGA [various notices]. 

The application must be filed with the Surrogate Section of Court of Queen’s Bench, known as Surrogate Court. A grant application is referred to as a desk application which means that the judge reviews the documents without the applicant having to present their matter in open Court. 

In the end, pre-planning, and being proactive about challenging matters in life that we need to grasp, such as someone’s passing can be hard. However, there are processes in place that ensure the deceased’s estate is appropriately dealt with, and that their legacy lives on. 

Steve Dimic

If you have any additional inquiries regarding any of the topics or if you have ideas for future topics, please feel free to email me at [email protected]

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