We frequently hear questions about who gets your estate when you die. The law around this topic is well documented in both legislation in Alberta and through the common law. The common law is the series of rulings hand down by courts in Alberta as well as the Supreme Court of Canada. Unfortunately, disputes as to who benefits from an estate emerges often. The wills and estates lawyers at Kahane Law Office help clients in both Calgary and Edmonton with respect to all aspects of your estate. For example, this includes reviewing and advising from drafting your will right through to the final distribution of your estate.
We recognize that the below often causes confusion with people. This is especially true of the intestate rules. Please do not hesitate to call or email with questions.
Who Gets Your Stuff When You Die
Unfortunately, when people ask “who gets my stuff when I die”, the answer is not clear-cut. Four usual scenarios exist when you pass, as to who benefits form your estate. Which avenue your estate takes rests largely on how proactive and organized a person is with respect to their estate. A well thought out and drafted will leaves the estate under the first subheading below. However, many people avoid planning for their death, leaving distribution of their assets to chance, or dispute. For example, the four most frequent distribution of your estate includes:
People With A Will
People with a properly drafted will and estate plan, make life easier for their family and loved ones. The will sets out who acts on behalf of the estate to manage it. It also states who gets what and when they get it. If desired, it sets up trusts for minors or other beneficiaries, guardians for children and much more. More information is available here, however, you set out exactly what happens to your estate.
People Without A Will AKA Intestate Estates
This is the most misunderstood aspects of estates. Dying without a will is called dying intestate. When asked, who gets your estate when you die and that person has no will, they often think the government gets your assets. However, this only occurs in very limited situations. The following forms the distribution of your assets if you die intestate:
Married Or Common Law / Interdependent Partner But With No Kids
If you have no will, and die, your spouse, an interdependent partner or common law partner inherit your estate. By default, this includes situations where you are living separate and apart from each other.
Married And Common Law / Interdependent Partner With No Kids
Sometimes people have both a spouse and a common law partner. For example, a person who is not divorced and is living with a new partner. In this situation, the spouse and the common law partner equally share the estate.
Married Or Common Law / Interdependent Partner With Kids
This one is a little more complicated. The law deals with the full range of situations of who gets your stuff when you die in this situation. For example, the law states that:
- If all your kids came from your spouse or interdependent partner (common law partner), then your spouse or partner get the whole of your estate.
- If any of your kids came from another relationship (no matter how short lived), then usually (subject to prescribed amounts) the surviving spouse or partner gets half of the estate and the other half of the estate is distributed equally to all the deceased person’s kids.
Married And Common Law / Interdependent Partner With Kids
When someone passes with kids and both a spouse and a common law or adult interdependent partner, then the kids get half the estate and then the rest is split between the spouse and the partner. However, please note that this often occurs but remains subject to the prescribed amounts as above.
Exceptions To Separated Spouses Sharing In The Estate Rule
Firstly, the complications caused by separations and who gets your estate when you die stop completely if you draft a new will after your separation. Remember these rules apply when there is an intestacy. The law states that your spouse is “deemed predeceased” in some situations. A predeceased person receives no benefit from the estate in these situations. For example, the following leads a separated spouse to receive no benefit:
- At the time of death, the parties lived separate and apart for two or more years;
- Under the Family Law Act, a declaration as to irreconcilability occurred; or
- The parties entered into an agreement (for example, as separation agreement) or the court issued an order as to the final disposition of assets and debts between the parties.
Lastly, to further complicate things, these exemptions stop if the parties the reconcile. This means that if, at the time of death, the separated spouse was once again living with the deceased in a subsisting manner, then the separated spouse is a spouse again for the purposes of who gets your stuff when you die.
No Spouse or Common Law / Interdependent Partner With Kids
When a person passes with no spouse or partner but has kids, then the estate passes in equal shares to surviving children of the deceased. If a child of the deceased passed away first, and that child left children of their own, then a share also goes to the beneficiaries of that child’s estate. In other words, only the beneficiaries of a child who predeceases and has no kids of their own, receives no benefit from your assets.
No Spouse or Common Law / Interdependent Partner And No Kids
If you pass away with no will, no spouse or partner and no kids then who gets your estate is broken down in a progression. For example, in this situation and in order of who gets your estate, and you have:
- Surviving parents, then the law splits your estate between your parents (or surviving parent) no matter your relationship with them. For example, an absentee parent still falls into this category.
- If you have no parents, then your assets fall to any child of your parents. (for example, any brother or sister or half-sibling)
- When people have no parent or sibling, your estate goes equally to any surviving grandparent(s). Specifically, one half of your estate goes to each side of your grandparents in equal parts.
- If only one side of your family has a surviving grandparent, or descendant of your grandparent(s), then that side receives the whole of your assets.
If no person as above survives the deceased, then the estate falls in a similar equal manner as grandparents to surviving great grandparents.
Lastly, please note that the law deems any person whose lineage exceeds 5th or more degree of relationship to the intestate as pre-deceased. This means that those people receive no benefit from the estate.
Only in the event that a person has no heirs at all, does the estate then fall to the government under the Unclaimed Personal Property And Vested Property Act.
If the above caused confusion as to who gets your estate when you die, then this increases the level of complexity. Sometimes people have a valid will. However, the will lacks language to distribute the entire estate. Most frequently this situation occurs with wills lacking a “residual” clause. In addition, this also occurs when a gift in a will is invalid. Next, anything not distributed in the will, follows the above intestacy laws.
Lastly, who gets your estate when you die depends on whether or not someone disputes things. Many reason for these types of disputes exist that deviate the distribution of your estate from the above in Alberta. These disputes tend to be of a very contentious nature. For example, reasons for these disputes include:
- Marriage or relationship contracts inconsistent with the will or intestate rules;
- Leaving out family member who normally benefit from an estate;
- Not providing for dependent beneficiaries;
- Law suits against the estate; and lastly
- Lawsuits involving assets (ie property or companies) of the late person.
Estate Lawyers To Make Sense Of The Above
The wills and estates lawyers at Kahane Law Office help clients understand the law dealing with estates. If you want to decide yourself as to who gets your assets when you die, then call today. We help plan your estate. For people dealing with an estate, we also help with the legal process of finalizing an estate. This is true for both situations with a will and intestates. Call toady!