Can Family Maintenance Claims Reach Joint Accounts and Other Assets in Alberta?

You may have learned that the person who died put their bank account in joint names, or named someone else on an account, and that little or nothing is left in the estate. If you are a family member who was left without enough support, you will want to know whether the court can still order help from those assets.

The short answer is that it depends on how the asset was held and what the court is asked to do. This article explains what counts as the estate for a maintenance claim, how joint property is treated, and where transfers made during life come into the picture.

This article covers the law of Alberta.

What a maintenance claim is, and who can bring one

Family maintenance and support claims come from Part 5, Division 2 of the Wills and Succession Act. If someone dies with a will that does not adequately provide for the proper maintenance and support of a family member, the Court may order that any provision it considers adequate be made out of the deceased's estate. The same section applies where a person dies wholly or partly without a will and a family member's share is inadequate.

This is a remedy for "family members" as defined in the Act, not a general right to inherit. The list covers a spouse, an adult interdependent partner, a child under 18, an adult child unable to earn a livelihood because of mental or physical disability, a child aged 18 to under 22 who is a full-time student and cannot withdraw from the parents' charge, and a grandchild or great-grandchild under 18 for whom the deceased stood in the place of a parent. If you are not in one of those categories, you have no Part 5 claim, however close the relationship.

What counts as the estate for the claim

The court's order is made out of the deceased's estate. It can benefit one or more family members, can be made from any part of the estate, and applies whether or not there is a will. Unless the Court orders otherwise, the order charges the whole estate.

What counts as part of the estate depends on how each asset was held, and joint property that passes by survivorship to a surviving co-owner generally falls outside the estate.

Joint accounts and other jointly held property

If joint owners die at the same time, or it is uncertain who survived, the law deems them to have held the joint property as tenants in common unless a contrary intention is found.

Because the order is made from the estate, a joint account that passed by survivorship is not simply available in the same way as a bank account held only in the deceased's name. Whether, and how far, a court can look to such an asset in a particular case is not something this general overview can settle. It depends on how the account was set up, who contributed to it, and what the deceased intended, so it is worth confirming with a lawyer.

The same caution applies to accounts or policies with a named beneficiary. Whether they form part of the estate depends on the type of asset and the wording of the designation, so get the documents and have them reviewed before assuming they are out of reach or within it.

Gifts and transfers made during the person's life

Even where an asset sits outside the estate, it is not irrelevant. When deciding a claim, the Court considers the size and distribution of the estate and any benefits arising from the death, and this includes property the deceased transferred or placed in trust during life. The Court may also consider any other matter it considers relevant.

That means a transfer to a joint account or a trust can affect how the court views the overall picture, including what the family member has available and what the others received. The Court also looks at the family member's relationship with the deceased, age and health, ability to contribute to their own support, and entitlement to support from another person. It considers the deceased's legal support obligations, their reasons for the gifts they made (including written statements), and any agreement or waiver by the family member.

There are limits that protect other people. Property disposed of under a good-faith contract is exempt from the order, except for any value exceeding the consideration, and assignments or charges made before the order are void. A waiver by the family member does not stop the Court from making an order.

Deadlines, protecting the estate and what to do next

An application must be started within 6 months after the grant of probate or administration is issued, and the clock runs from the date of the grant, not the date of death. The Court may allow a late application for any part of the estate that has not been distributed at the date of the application. Without consent or a court order, the personal representative may not distribute estate property for 6 months after the grant, although reasonable advances are permitted, and distributing in breach creates personal liability. Once notice of an application is served on the personal representative, the estate is subject to any order made. The Court can also protect or preserve estate assets or direct how the estate is administered.

• Find out whether a grant of probate or administration has been issued, and note its date.
• List every account, policy and property, and how each was held: sole name, joint, or with a named beneficiary.
• Collect account opening documents, beneficiary forms, and any records of transfers or trusts made during life.
• Gather proof of your relationship to the deceased and of your own income, health and needs.
• Ask the personal representative in writing for estate information.
• Speak to a lawyer early, because the deadline is short and late relief is limited to undistributed property.

Applications under Part 5 are started by filing Form C 1 with an affidavit in Form C 2. Notice must be served on the personal representative, all family members, other people who may be affected, and the Public Trustee where a person under 18 is interested. A lawyer can confirm current forms and steps.

Frequently asked questions