Deadline to Bring a Family Maintenance Claim Against an Estate in Alberta

If you may have a family maintenance claim against an estate, the deadline is one of the most important things to understand. Missing it can limit what the Court is able to do for you.

This article explains the Alberta time limit, when it starts, what happens if you are late, and why the personal representative's own timeline matters.

This article covers the law of Alberta.

The basic rule: 6 months from the grant

Under s. 89(1) of the Wills and Succession Act, an application must be commenced within 6 months after the grant of probate or administration is issued. The clock runs from the date of the grant, not the date of death.

In practice, that means you need to find out whether a grant has been issued and on what date. The date of death alone does not tell you your deadline. If you are unsure, a lawyer can confirm the date and calculate the period.

Can the Court allow a late claim?

Sometimes. Under s. 89(2), the Court may allow an application to be made at any time for any part of the estate that has not been distributed as of the date of the application. A late claim is therefore a matter of court discretion, and it is limited to undistributed property.

This is why waiting is risky. Once property has been distributed, it may be out of reach for a late application. You should not assume an extension will be granted.

How this fits with the estate's timeline

The deadline lines up with a waiting period for the personal representative. Without consent or a court order, the personal representative may not distribute estate property for 6 months after the grant. Distributing in breach creates personal liability, although reasonable advances are permitted.

Once notice of an application is served on the personal representative, the estate is subject to any order made. Distributing in breach then creates personal liability and a possible offence. The Court can also make interim orders to protect or preserve estate assets, including suspending administration.

Who applies and what is involved

• A family member can apply on their own behalf.
• For a family member under 18, a parent or guardian, the Public Trustee, or another person permitted by the Alberta Rules of Court or Surrogate Rules can apply.
• For a represented adult or incapacitated person, their trustee or another person permitted by those rules can apply.
• Under the Alberta Rules of Court, an application is commenced by filing Form C 1 with an affidavit in Form C 2.

Notice must be served on the personal representative and all family members, any other persons who may be interested in or affected by the order, and the Public Trustee where a person under 18 is interested in the estate. If the Public Trustee must be served, the application cannot proceed until the Public Trustee is represented or has said it will not be. Because the application is commenced within the deadline, build in time for these steps.

Division 2 applies only to deaths on or after February 1, 2012. Earlier deaths are governed by the repealed Family Relief Act or Dependants Relief Act.

Who can claim and what the Court considers

The deadline only matters if you are a family member as defined in s. 72(b) of the Wills and Succession Act. This is a statutory remedy, not a general right to inherit, so a person outside the definition has no Part 5 maintenance claim, however close the relationship. The listed family members are:

• The deceased's spouse or adult interdependent partner.
• A child under 18, including a child in the womb later born alive.
• An adult child unable to earn a livelihood because of mental or physical disability.
• A child aged 18 to under 22 who cannot withdraw from the parents' charge because they are a full-time student.
• A grandchild or great-grandchild under 18 for whom the deceased stood in the place of a parent.

An able-bodied adult child aged 22 or older, or one outside those categories, has no Part 5 claim. A former adult interdependent partner is also not a family member under that paragraph.

If you qualify, the Court looks at factors including your relationship with the deceased, your age and health, your capacity to contribute to your own support, and any entitlement to support from another person. It also considers the size and distribution of the estate and any other matter it considers relevant. If the Court makes an order, support may be a periodic amount, a lump sum, or a transfer of specified property.

What to do next

• Find out whether probate or administration has been granted and write down the date of the grant.
• Mark 6 months from that date on your calendar and treat it as a firm deadline.
• Confirm that you fall into a listed family member category.
• Gather documents about your relationship with the deceased and your financial circumstances.
• If the estate may be distributed soon, get legal advice quickly about protecting your position.
• If a grant has not yet been issued, ask a lawyer how that affects your timing.

Frequently asked questions