- A personal representative holds any property the will does not dispose of in trust for the people entitled on intestacy.
- When a gift fails, a named alternate beneficiary takes first; if there is none, the default order is certain descendants, then the other residuary beneficiaries, then intestacy, and whether other wording in a will can change this is worth confirming with a lawyer.
- Even for this property, the representative must not distribute within 6 months after the grant unless all family members consent or the Court authorizes it.
Sometimes a will does not deal with everything. A beneficiary may have died before the person who made the will, a gift may not be able to take effect, or the will may simply say nothing about a particular asset. People then ask who gets that property and what the executor is allowed to do with it.
In Alberta, the Wills and Succession Act sets out default rules for these gaps. This article walks through them in order, then explains the limits that still apply to the executor before anything is handed out.
This article covers the law of Alberta.
Property the will does not mention
A will may leave out some property, or a gift may fail so that nothing in the will says where it goes. The personal representative is a trustee of any property not disposed of by the will. They hold it for the people entitled on intestacy under Part 3 of the Wills and Succession Act.
This is often called a partial intestacy. The will still governs everything it validly deals with, and the intestacy rules fill only the gap. A trustee here means someone who must manage the property for others, not for themselves.
When a gift in the will fails
A gift can fail because the beneficiary died before the person who made the will. The same order of substitution also applies where a gift is void, contrary to law or disclaimed. The property moves down this list until someone can take it:
- First, an alternate beneficiary named in the will, if there is one.
- Next, if there is no alternate and the beneficiary who died was a descendant of the person who made the will, that beneficiary's descendants who survive the will-maker.
- Next, the surviving residuary beneficiaries named in the will, in proportion to their interests.
- Finally, if none of those people can take, the property is distributed under Part 3 as if the will-maker had died without a will.
There is an important limit. The step for descendants 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 that rule. The gift goes to an alternate, if one is named, and otherwise to the surviving residuary beneficiaries or on intestacy.
Whether other wording in a will can change this default order is something a lawyer should confirm for your particular will.
How the intestacy rules divide what is left
If the property ends up under Part 3, who receives it depends on the family. The main patterns are below.
| Situation | Who receives the property |
|---|---|
| Spouse or adult interdependent partner, no descendants | The entire intestate estate goes to the spouse or partner. |
| Spouse or partner, and all descendants are also the partner's | The entire estate goes to the spouse or partner. |
| Spouse or partner, and some descendants are not the partner's | 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. |
| No spouse or partner, but descendants | Each surviving child takes one share, and a deceased child's share passes to that child's descendants. |
| No spouse, partner or descendants | 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 it. A person's right to claim under Part 6 of that Act is preserved.
Limits on distributing this property
The executor cannot simply hand over the property as soon as the gap is identified. The personal representative must not distribute any part of the estate to a beneficiary until 6 months after the grant, unless all family members consent or the Court authorizes it. This protects dependants' maintenance and support claims, which may be made only within 6 months after a grant of probate or administration.
- A representative who distributes early is personally liable for any maintenance and support that should have come out of the amount distributed.
- Before the 6 months end, the representative may make reasonable advances for the maintenance of family members who are beneficiaries.
- Once notice of a maintenance and support application is given, the representative must not distribute except in accordance with the court's order.
If the executor is unsure: what to do next
A trustee may apply to the court for directions on any matter or question of fact, law or discretion. A trustee who follows the directions is discharged from the duty on that matter. This can be a sensible route when it is unclear who is entitled to a failed gift.
- Read the will closely for alternate beneficiaries and a residuary clause.
- List every asset and note which ones the will does and does not cover.
- Identify which family members would be entitled on intestacy.
- Note the date of the grant and hold off on distributions until the 6 months have passed, unless the exceptions apply.
- Speak with a lawyer before distributing if the answer is unclear.
Frequently asked questions
Who gets a gift if the beneficiary died before the person who made the will?
The gift goes first to an alternate beneficiary named in the will. If there is none and the beneficiary was a descendant of the will-maker, it goes to that beneficiary's surviving descendants. After that it goes to the surviving residuary beneficiaries, and then on intestacy.
If my friend or sibling named in the will died first, do their children inherit?
Not under the default rule. The descendant substitution applies only where the beneficiary who died first was a descendant of the will-maker. Without an alternate, the gift generally goes to the surviving residuary beneficiaries or on intestacy.
Does a surviving spouse get everything under the intestacy rules?
Not always. If all the descendants are also the spouse's or partner's, or there are none, the spouse or partner receives the entire estate. If some descendants are not the partner's, the partner gets the greater of $150 000 or 50% of the net value, and the rest goes to the descendants.
Can the executor distribute the leftover property right away?
Generally not. Distribution must wait until 6 months after the grant unless all family members consent or the Court authorizes it. An executor who distributes early can be personally liable for maintenance and support that should have come out of that amount.
Sources
- Wills and Succession Act, SA 2010 c W-12.2, s. 32 — kings-printer.alberta.ca
- Preferential Share (Intestate Estates) Regulation, AR 217/2011 — kings-printer.alberta.ca
- Trustee Act, SA 2022 c T-8.1, s. 82 — kings-printer.alberta.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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