Can an Executor Distribute the Estate During a Maintenance Claim in Alberta?

You have been named to administer an estate, and now a family member says the will, or the intestacy rules, did not provide enough for them. Beneficiaries may be asking when they will be paid. You may worry that paying them could leave you answerable if the claim succeeds.

This article explains the rules in Alberta's Wills and Succession Act that limit early distribution, what personal liability means in practice, and the steps a personal representative can take to stay protected. It is general information, not advice on your particular estate.

This article covers the law of Alberta.

Where the claim comes from

Family maintenance and support claims are created by Part 5, Division 2 of the Wills and Succession Act. If a person dies with a will that does not adequately provide for the proper maintenance and support of a family member, the Court may, on application, order that any provision it considers adequate be made out of the estate.

The claim is not limited to estates with a will. Section 88 also applies where a person dies wholly or partly intestate and a family member's share is inadequate.

The two rules that limit early distribution

The first rule is a waiting period. Without consent or a court order, the personal representative may not distribute estate property for 6 months after the grant. That period lines up with the time limit for claimants, who must commence an application within 6 months after the grant of probate or administration is issued.

The second rule starts once a claim is made. When notice of an application is served on the personal representative, the estate becomes subject to any order made. In plain terms, property you hand out after that point may still be needed to satisfy the order.

The waiting period does not stop all payments. Reasonable advances are permitted. Whether a particular payment counts as reasonable is a judgment call, so it is worth confirming with a lawyer before you make it.

What personal liability means for you

If you distribute in breach of the 6-month rule, the Act creates personal liability. If you distribute in breach after notice of an application has been served, you face personal liability and a possible offence.

That means the risk is not only to the estate. It can fall on you personally, which is why the safest approach is usually to hold back and get clear direction rather than rely on a beneficiary's assurance that a claim will not go anywhere.

Why a claim may surface after you think you are done

A late claim is possible. 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. That is a matter of court discretion, and it is limited to undistributed property.

Only certain people can claim. The family members who can apply are listed in the Act:

• the deceased's spouse
• the deceased's 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

A person outside that list has no Part 5 maintenance claim, however close the relationship. Knowing who might qualify helps you judge whether a claim is realistic before you distribute.

Tools that help protect you, and what to do next

The Court can make interim orders to protect or preserve estate assets or direct how the estate is administered, including suspending administration. If a will postponed distribution, the Court may order earlier distribution once the payment is provided for or secured. You can also distribute with consent or a court order during the 6-month period.

Financial information matters too. On written request, a family member, personal representative or other served person must provide the required financial information, and the Court can order disclosure if they do not.

• Note the date the grant was issued and hold distributions until the 6-month period has passed, unless you have consent or a court order.
• If you receive notice of an application, stop distributing and keep the notice and its date.
• Make sure the right people are served, including the Public Trustee where a person under 18 is interested in the estate.
• Keep records of any advance you make and why it was reasonable.
• Ask a lawyer about seeking consent, directions or an interim order before paying beneficiaries.

Frequently asked questions