Who Inherits if There Is No Will in Alberta? Order of Relatives

If a relative died without a will, you may be wondering whether you inherit anything. Alberta's Wills and Succession Act sets out who receives the estate, and the answer depends on who survived the person.

This article explains the order of relatives in plain terms and flags the common exceptions, including unmarried partners and separated spouses.

This article covers the law of Alberta.

The starting point: Part 3 of the Act

Property not disposed of by a will is distributed under Part 3 of the Wills and Succession Act. Part 3 applies to deaths on or after February 1, 2012. The shares are worked out on the net value, after debts, charges, and funeral and administration expenses.

These rules cover only the estate itself. Jointly owned property with survivorship and assets with a named beneficiary, such as life insurance or RRSPs, pass outside it.

Spouse or adult interdependent partner first

If there is a surviving spouse or adult interdependent partner and no descendants, that person takes the whole intestate estate. If there are descendants and all of them are also descendants of the spouse or partner, the spouse or partner takes everything and the children do not share.

The exception is where a descendant is not also a descendant of the survivor, such as a child from another relationship. Then the spouse or partner takes the greater of the prescribed amount or 50% of the net value, and the rest goes to the descendants. The prescribed amount is $150 000.

Adult interdependent partners have the same entitlements as spouses.

Who counts as an adult interdependent partner

This term means a partner within the meaning of the Adult Interdependent Relationships Act. Living together alone is not the test. It is a relationship outside marriage where two people share one another's lives, are emotionally committed, and function as an economic and domestic unit.

• Living together in a relationship of interdependence for a continuous period of not less than 3 years.
• Living together in a relationship of some permanence where there is a child of the relationship by birth or adoption.
• Having entered into an adult interdependent partner agreement, with no minimum period of living together.

A person cannot have more than one adult interdependent partner at a time, and a married person cannot become one while living with their spouse. Paid domestic support and personal care does not create a relationship of interdependence. Whoever claims to be a partner has the onus of proving it in court proceedings.

An unmarried partner who does not qualify has no intestacy share under Part 3.

When there is no spouse or partner

Descendants share per stirpes. The estate is divided into one share for each surviving child and one for each deceased child who left descendants, and a deceased child's share passes to that child's descendants in the same way.

If there is no spouse, partner or descendant, the estate goes in order to:

• The parents.
• Then descendants of the parents, meaning siblings, nieces and nephews.
• Then grandparents and their descendants.
• Then great-grandparents and their descendants, split between the two sides of the family.

Relatives of the 5th or greater degree are treated as having predeceased, and their share passes to closer relatives. Relatives by marriage are not included as kin. If no one is entitled, the estate is dealt with under the Unclaimed Personal Property and Vested Property Act, subject to s. 11 of the Public Trustee Act.

Exceptions that change the answer

• A child in the womb at death who is later born alive is treated as a child of the deceased.
• Separated spouses may be treated as having predeceased if they lived separate and apart for more than two years, were parties to a declaration of irreconcilability, or had an agreement meant to finalize separation. This does not apply if a reconciliation was subsisting at death.
• If the deceased left both a spouse and an adult interdependent partner, the estate is divided between them.

What to do next

• Sketch a family tree showing spouse or partner, children, parents and siblings.
• Note any separation, agreement or earlier relationship.
• Gather proof of an interdependent relationship if you may be a partner.
• Speak to a lawyer if a partner's status, a blended family or a dispute is involved.

Frequently asked questions