What Happens if a Beneficiary Dies Before the Will-Maker in Alberta?

You open a will and find that one of the people named in it has already died. It is a common situation, and it raises a fair question: does the gift simply disappear, or does someone else receive it?

Alberta's Wills and Succession Act sets out a default order for these cases. This article walks through that order in plain language so you can see where a failed gift is likely to end up. A lawyer can confirm how it applies to the exact wording of a particular will.

This article covers the law of Alberta.

The gift cannot take effect, so the law steps in

A gift in a will only works if the person it is meant for is alive when the will-maker dies. If the beneficiary died first, the gift cannot take effect as written. Section 32 of the Wills and Succession Act then decides who receives the property instead.

The same order of substitution applies in other situations where a gift fails, so it is worth knowing even if no one in your family has died early.

The order of who takes instead

The Act works through a series of steps. Each step applies only if the one before it cannot produce a beneficiary.

• First, the alternate beneficiary named in the will, if the will names one.
• Second, if there is no alternate and the beneficiary who died was a descendant of the will-maker, that beneficiary's descendants who survive the will-maker.
• Third, the surviving residuary beneficiaries named in the will, in proportion to their interests.
• Fourth, if none of those people can take, the property is distributed under Part 3 of the Act as if the will-maker had died without a will.

A named alternate takes first, because the default order applies only where the will has no alternate beneficiary. Whether other wording in a will can change the default order is something to confirm with a lawyer before relying on it.

Family members compared with friends and charities

The step that sends a gift to the beneficiary's children applies only where the beneficiary who died first was a descendant of the will-maker. A friend, sibling or charity who dies first does not pass the gift to their own children under this rule.

Gifts that fail for other reasons, including disclaimer

The same order applies if a gift cannot take effect because it is void, contrary to law or disclaimed. A disclaimed gift passes to the alternate beneficiary, then to the beneficiary's descendants if the beneficiary was a descendant of the will-maker, then to the surviving residuary beneficiaries, then on intestacy.

If you are thinking of disclaiming a gift, speak with a lawyer first. The way to disclaim, any timing, and the tax and creditor effects all depend on the facts and should be confirmed.

What intestacy means if nobody can take

When a gift falls all the way through to intestacy, the personal representative holds that property as trustee for the people entitled under Part 3. Who they are depends on the family.

• A surviving spouse or adult interdependent partner with no descendants takes the entire intestate estate.
• The spouse or partner also takes everything if all of the deceased's descendants are also descendants of that spouse or partner.
• If some descendants are not also descendants of the spouse or partner, the spouse or partner gets the greater of $150 000 or 50% of the net value of the intestate estate, and the rest goes to the descendants.
• With no spouse or partner, the estate goes to the descendants, each surviving child taking one share and a deceased child's share passing to that child's descendants.
• With no descendants and no spouse or partner, the estate goes to the parents in equal shares if both survive.
• If no individual is entitled to an intestate estate, the Unclaimed Personal Property and Vested Property Act applies to the estate, and a person's right to claim under Part 6 of that Act is preserved.

Other family situations can lead to different results, so it is worth confirming with a lawyer how Part 3 applies to your facts.

What to do next

• Read the will for any alternate beneficiary and for who is named to receive the residue.
• Confirm the date of death of the beneficiary and the will-maker, since the rule depends on who died first.
• Work out whether the beneficiary who died first was a descendant of the will-maker.
• Gather a list of the surviving descendants and residuary beneficiaries.
• Ask a lawyer to confirm the result before any distribution is made.

Frequently asked questions