Intestate – When Someone Dies Without A Will (Probate when there is no will)
Dying intestate or an intestacy is when someone dies with no will
Intestacy or dying intestate is when a person dies without a valid will. This happens if there is no will. It also happens with improper drafting of the will or with incorrect following of the rules around executing the will. Lastly, not locating any will creates an intestacy. If a deceased person last had the will, and no will is found, the court deems that the deceased person destroyed the will before their death. This leave the estate intestate. In this case, someone needs to apply to the surrogate court for the power to administer the estate. This is sometimes referred to as probate, but when there is no will it is properly referred to as applying for letters of administration. The interstate lawyers of Kahane Law Office (403) 225-8810 in Calgary, Alberta and in Edmonton, Alberta (780) 571-8463 are here to help you get through this difficult time.
Administering The Intestate Estate
When no will exists, the person in charge of the estate is called the executor or personal representative. When a person dies intestate – dies with no will – a family member may apply to the courts to act as the estate administrator. People often refer to this role as the estate trustee, as they hold the estate in trust for the beneficiaries. If the court grants letters of administration, the administrator must complete several tasks. For example, their role includes taking an inventory of the estate, and paying out all the debts. Lastly, they then make sure the beneficiaries receive what they should under intestacy laws. Alberta law, when people die without a will, is legislated by the Wills and Succession Act.
If no immediate family member or close friend of the deceased can or will act as administrator, then the court may appoint a trust company to undertake the task. At times, the asset base of the estate make administering the estate unnecessary. In this case, a person’s initial meeting with the intestate lawyer determines that no further requirements exist. Learn more here about the duties and responsibilities of the Administrator of an intestate estate.
Who Gets The Estate When Someone Dies Without A Will
The Wills and Succession Act in Alberta determines who will receive what if a person dies with no will. A lot of misinformation exists around intestate estates. It is not true that the Province of Alberta receives everything if a person passes away without a will. The possibility exists but only in very limited situations. For example, this only happens if there is absolutely no living relative of the person who died. Otherwise, depending on the family situation of the deceased, the estate may go to a spouse, children, parents, siblings, cousins, etc.. If the province finds no relative then the province get the estates assets and administers the funds. Down the road, if a relative steps forward later, that person maintains the right to apply for those funds.
Problems When No Will Exists
Intestacy can create many problems. Families fight over estates at the best of times, leading to estate litigation. This occurs more often with estates with substantial assets. The problems include, but are certainly not limited to, family fights over who gets the estate or administers the estate, children getting large sums of money or assets on turning 18, specific wishes of the deceased not being met, and more. The process and cost of getting a will is reasonable. The government fee is substantially lower than other provinces. Learn more about the problems with a blended family intestate situation here. To avoid these problems, reach out to speak to one of our estate lawyers. We help with estate planning to avoid these issues.
Problems With Poorly Drafted Wills
We see a lot of poorly drafted wills. One of the risks of a poorly drafted will, is that the estate requires both probate and a letter of administration as an intestacy. We see this frequently with will kits, but also with lawyer drafted wills. When we receive a will for review, we often find it less expensive to draft a new will instead of reviewing a will and then making changes to it. Some of the situations leading to this situation include, for example,
- Failure to include a residual clause
- Failure to include alternate executors / personal representatives; and
- Failure to include alternate trustees
Avoid Personal Liability With An Estate
If you disburse assets of an estate without the court granting an order to do so, you may face personal liability. This means defending a law suit against yourself and not as the estate. Always understand the laws surrounding managing and disbursing an estate. Many people find themselves in trouble without any intent to cause harm to the estate or beneficiaries. If in doubt, speak to an estate lawyer to ensure that you proceed correctly. We offer no charge consultations to help you manage the affairs of the estate. We help people every day.
Free Consultations
The death of a loved on is overwhelming. People find the legalities when no will exists even more overwhelming. This is why we offer free consultations to help you determine the necessity of a court application. This is at no charge and at no obligation. we like to help. In addition we provide you with legal information as to the next steps to take. Sometimes this meeting leads to less work for you and also less liability. If needed, then we help move forward with the legal side of finalizing the estate.
Getting Help When Dealing With Intestacy
We understand the ins and outs of finalizing an estate. We also understand the emotional side and difficultly in doing so. Both of our offices’ Calgary and Edmonton, Alberta intestacy lawyers help you understand the complexities of Intestacy laws. We also help with administering an estate when there is no will and avoiding personal liability. Also learn the difference between needing letters of administration vs. a will. The intestate lawyers at Kahane Law Office assists you in all matters relating estate administration. For Edmonton, please call us at (780) 571-8463 and for Calgary, please call us at 403-225-8810 or email us directly here today.