Dying Without a Will in Alberta: What Part 3 of the WSA Says

At a Sunday roast in south Edmonton, a 58-year-old electrician mentions that he and his partner of four years have finally paid off the truck. His 30-year-old daughter from his first marriage raises a glass, then asks a question she has been turning over for a while: neither of them is married, Dad has no will, so how would things be shared if the day ever came? Her father's partner admits she has wondered the same thing.

Alberta answers that question in Part 3 of the Wills and Succession Act (the WSA). The formula pays close attention to two things most families never think about: whether the surviving partner legally counts as a partner, and whether every child is also that partner's child. This guide walks through both, then through the wider family, the deadlines, and the safety valve for family members left short. For the broader Canadian picture, see our pillar on dying without a will in Canada.

"Common-law" and the term Alberta actually uses #

People often search for the rights of a common-law partner. That is the everyday phrase. The legal term in Alberta is adult interdependent partner, or AIP, and it comes from the Adult Interdependent Relationships Act.

Under that Act, a person is generally another person's AIP in one of three ways:

• they lived together in what the Act calls a "relationship of interdependence" for a continuous period of at least three years;
• they lived together in such a relationship of some permanence, and there is a child of the relationship by birth or adoption; or
• the two signed an adult interdependent partner agreement.^[NaN]

Two limits apply. A married person cannot become an AIP while living with their spouse, and a person can have only one AIP at a time.^[NaN]

In the Edmonton family, four years of shared life and finances may well meet the three-year test, which would put the partner in a very different position from a mere housemate.

A spouse or partner and no descendants #

The simplest Alberta case is spelled out in section 60. If someone dies leaving a surviving spouse or AIP but no descendants, the entirety of the intestate estate goes to that spouse or AIP.^[NaN]

Children in the picture: whose children are they? #

When there are descendants, section 61(1) splits into two paths:

• if every one of the intestate's descendants is also a descendant of the surviving spouse or AIP, the whole intestate estate generally goes to the spouse or AIP;
• if any descendant is not the survivor's descendant, the survivor generally takes the greater of the prescribed amount or 50% of the net value of the estate, and the residue is shared among the intestate's descendants.^[NaN]

The prescribed amount under the Preferential Share (Intestate Estates) Regulation is $150,000.^[NaN]

"Net value of the intestate estate" is defined in section 58(1)(b) as the value of the estate wherever situated, both inside and outside Alberta, after deducting debts, charges, and funeral and administration expenses.^[NaN] To get a feel for what an estate is worth and what the grant may cost, our probate fee calculator and our explainer on probate fees in Alberta can help.

Example. Suppose the Edmonton electrician dies without a will, his partner qualifies as his AIP, and his only descendant is the daughter from his first marriage. Because the daughter is not the partner's descendant, section 61(1)(b) applies. If half the net value is more than $150,000, the partner takes that half and the daughter receives the other half as residue. If half the net value is less than $150,000, the partner's share is $150,000 and the daughter receives whatever residue remains after that amount.

Had the electrician and his partner raised the daughter together as their own child, the first path would apply instead, and the partner would generally take the whole estate.

When a spouse and an AIP both survive #

Life does not always tidy itself up. Section 62 deals with the case where both a surviving spouse and a surviving AIP exist. If there are descendants, the share described in section 61(1)(b)(i) is split in halves between them; if there are none, the whole intestate estate is split in halves.^[NaN]

Separated spouses #

Section 63 deems a surviving spouse to have predeceased the intestate, which removes them from the formula, if at the time of death the two:

• had been living separate and apart for more than two years;
• were parties to a declaration of irreconcilability under the Family Law Act; or
• were parties to an agreement or order about property or other family issues that appears intended to separate and finalize their affairs.^[NaN]

The rule does not apply to a spouse who reconciled with the intestate if the reconciliation was still subsisting at the death.^[NaN]

No spouse or partner: the order of relatives #

If there is no surviving spouse or AIP, sections 65 to 69 work outward through the family:

1. descendants, divided by branch (per stirpes);
2. parents, equally, or the surviving parent;
3. descendants of the parents;
4. grandparents and their descendants, with the estate divided by side of the family;
5. great-grandparents and their descendants, following the same pattern.^[NaN]

Relatives of the fifth or greater degree are deemed to have predeceased, and if there is no one entitled at all, the Unclaimed Personal Property and Vested Property Act applies.^[NaN]

When the formula leaves someone short #

Part 5 of the WSA offers a route for certain family members. Under section 88, if a person dies wholly or partly intestate and a family member's share is inadequate for their proper maintenance and support, the Court may order more from the estate.^[NaN] "Family member" in section 72(b) includes a spouse, an AIP, children under 18, adult children unable to earn a livelihood because of a mental or physical disability, children aged 18 to under 22 who are full-time students, and certain grandchildren or great-grandchildren under 18 for whom the deceased stood in the place of a parent.^[NaN]

The timing rule in section 89 is firm. An application generally must be started within six months after the grant of probate or administration is issued, although the Court may allow one later for any part of the estate not yet distributed.^[NaN]

Which deaths these rules cover #

Part 3 applies only to deaths occurring on or after February 1, 2012.^[NaN] This guide does not cover earlier deaths. The person who steps in to administer an Alberta estate will find the next steps in our complete Alberta executor guide.

Questions to bring to your own Sunday dinner #

The Edmonton family's conversation suggests a short checklist for anyone in Alberta without a will:

• Is the person you live with your spouse, your adult interdependent partner, or neither? The Adult Interdependent Relationships Act tests decide the second.
• Are all of your descendants also your partner's descendants? That is the switch between the two paths in section 61(1).
• Are you separated from a spouse without having finalized things? Section 63 looks at living apart for more than two years, a declaration of irreconcilability, or an agreement or order.
• Does anyone rely on you who might be a "family member" under section 72(b), such as a child aged 18 to under 22 in full-time studies?

After the roast #

The electrician's daughter was not upset by the answer, only surprised at how much depended on labels and on whose child she was. A will lets a family decide those things for themselves instead of leaving them to section 61. The steps for making a will in Alberta are set out in our provincial guide, and the Alberta wills page explains where we fit in.

If that Sunday conversation sounds familiar, It's Simple Will can help you write your own will, so that you decide who receives what.