Dying With No Will and No Relatives: What Happens in Alberta

Some people die with no will and no family anyone can find. Others leave only distant relatives, or a partner who does not legally qualify for a share. In these situations people understandably wonder who gets the property.

This article walks through how Alberta looks for an heir, when an estate is treated as having none, and the roles of the Crown and the Public Trustee.

This article covers the law of Alberta.

Alberta searches the family tree first

Property not disposed of by a will is an intestate estate and is distributed under Part 3 of the Wills and Succession Act. If the person left a surviving spouse or adult interdependent partner but no descendants, the whole estate goes to that spouse or partner. If there are descendants and all of them are also descendants of the spouse or partner, the spouse or partner takes the entire estate. If one or more descendants are not also descendants of the spouse or partner, the spouse or partner takes the greater of the prescribed amount ($150 000) or 50% of the net value, and the remainder goes to the descendants. Descendants share per stirpes.

If there is no spouse, partner or descendant, the estate goes in order to the parents, then descendants of the parents (siblings, nieces and nephews), then grandparents and their descendants, then great-grandparents and their descendants, split between the two sides of the family.

The Estate Administration Act applies where the person who died was a resident of Alberta on the date of death or owned property in Alberta. The net value of an intestate estate is worked out after debts, charges, and funeral and administration expenses.

Who counts as a relative

• Kin means relatives by blood or adoption, and excludes relatives by marriage.
• Degrees are counted upward from the deceased to the nearest common ancestor and then downward to the individual.
• Descendants of a half-kinship inherit equally with those of the whole kinship in the same degree.
• Individuals of the 5th or greater degree of relationship are treated as having predeceased, and their share passes to closer relatives entitled to it.
• An unmarried partner who is not an adult interdependent partner has no intestacy share under Part 3.

So an estate can have no heir even when distant cousins exist, because those too remote in degree are treated as having predeceased.

Whether a partner qualifies is not just a matter of living together. A relationship of interdependence is one outside marriage in which two people share one another's lives, are emotionally committed to one another, and function as an economic and domestic unit. A person is an adult interdependent partner after living together in that kind of relationship for a continuous period of not less than 3 years. Without the 3 years, a relationship of some permanence can qualify if there is a child of the relationship by birth or adoption, or if the two entered into an adult interdependent partner agreement. A person cannot have more than one adult interdependent partner at a time, and a married person cannot become one while living with his or her spouse. No relationship of interdependence exists where one person provides the other domestic support and personal care for a fee or other consideration. A partner can also become a former partner, for example by living separate and apart for more than one year with the intent that the relationship not continue. Anyone claiming to be an adult interdependent partner has the onus of proving the relationship in court proceedings.

When no one is entitled

If no one is entitled to the intestate estate, it is dealt with under the Unclaimed Personal Property and Vested Property Act, subject to s. 11 of the Public Trustee Act. The details of how that Act operates are worth confirming with a lawyer, since they depend on the assets involved.

Before anyone concludes that an estate has no heirs, the family search matters. Relatives by blood or adoption are counted, and relatives by marriage are not. Which assets form part of the estate can also change the result, so it is worth confirming with a lawyer.

The Crown and the Public Trustee

The Crown in right of Alberta is the final entry in the order of people who may apply for a grant where there is no will, after family members, a person with an interest because of a relationship with the deceased, and a claimant.

The Public Trustee has other roles. It must be served where a minor is interested in an estate, and notice goes to the Public Trustee where circumstances require. Where special circumstances require, the Court may issue a grant to the Public Trustee or another suitable person.

The list of people who may apply for a grant continues past family members to a person with an interest because of a relationship with the deceased and a claimant. Whether a particular person fits one of those categories depends on the facts, so it is worth confirming with a lawyer.

What to do next

If you are dealing with an estate like this, start by recording what you know. The rules for earlier deaths differ, since Part 3 applies to deaths on or after February 1, 2012.

If someone applies for a grant, the applicant must file Form GA1 (Grant Application) and any other forms the circumstances require. Online applications through the Surrogate Digital Service by individuals without a lawyer require that you be an Alberta resident and one of the applicants, and paper applications are also accepted. The applicant must serve the application with a Form GA2 Inventory on beneficiaries on intestacy and persons required under s. 11 of the Estate Administration Act. Unless the court orders otherwise, no grant is issued until the clerk has completed a search for other applications or wills. Once a grant issues, notice in Form GA7 must be given within 30 days after the grant issues. How long all of this takes depends on the file, so the Surrogate Clerks' Office is the place to check.

• Confirm the date of death.
• List every known relative, including half-siblings, and note whether each is related by blood or adoption.
• Check whether any partner may qualify as an adult interdependent partner.
• Gather information on assets and debts, and note which assets pass outside the estate.
• Speak with a lawyer or the Surrogate Clerks' Office before applying, especially if the Crown or Public Trustee may be involved.

Frequently asked questions