Volumes have been written about the fact that “everyone needs a will.”  This article will focus on what happens when you die without one.

What is Intestacy?  Simply put, intestacy is dying without a will.  Someone who dies without leaving a will is said to have died “intestate.”

How Can Intestacy Happen?  What people fail to recognize is that intestacy can happen not just when one dies without a will, but it commonly happens when one dies without a valid will.  Arguably, one of the biggest problems a lawyer sees in this area comes from do-it-yourself legal will kits.  Like most “do-it-yourself” kits, it can save money if done properly.  Conversely, though, it can cost one dearly if done improperly.  This is especially true in the wills and estates arena, and as a result, some “do-it-yourselfers” end up dying leaving no legal will at all because of defects and faults within the “do-it-yourself” will they leave behind. 

Can The Government Take My Estate?  It is surprising to hear how many people believe that if someone dies without a will, the government will take the estate.  That is completely and totally not true.  This myth likely stems from a small, 2-page law in Alberta called the Ultimate Heir Act, which states that the government can become the sole beneficiary of an intestate person’s estate.  However, this can only happen if, after 6 years from the date of death of an intestate person, absolutely no next of kin or other rightful beneficiary of an estate can be found.  As one can imagine, this happens so rarely that it hardly even warrants discussion.

What Happens To My Estate If I Do Die Without A Will?  The distribution of an Intestate’s Estate is governed by a law called the Intestate Succession Act.  On intestacy, the act says that the Estate will go to the deceased person’s spouse/and or children. If no spouse, then to the children; if no children, then to the grandchildren, or parents, siblings, and on and on it goes through the family lines.  There are some other variations to the law that will not be touched upon here.  Also, a family member or friend of the deceased will have to apply to the Court of Queen’s Bench to become an Administrator of the Estate, and will have to prove why he or she is the best person to fill the role – nobody “automatically” takes on the role.  This is sometimes a bone of contention in some families. 

Some may look at the Intestate Succession Act and say “That’s how I would want my Estate to be divided, anyways!  Why do I even need a will, then?”  The fact is that sometimes, people like to make provision for things like heirlooms, jewellery, collections, furniture, and other such things, gifting them to a particular person.  With no will indicating your wishes on the matter, squabbles over entitlements can erupt, making the distribution much more difficult, and usually leaving hurt feelings between family members.

What About My Children?  If you have children, arguably the most important role of a will is allowing you to dictate who should be the guardian of any minor children you have at the time of your death.  Again, if there is no Will providing direction on this matter, it is not uncommon for disputes over custody of the children to end up in the Courts, with disputes often costing tens of thousands of dollars to determine.  It should be noted that the guardianship appointment as you make in your will is not automatic, as a Court order is needed to appoint guardians.  In making this determination, the Court will always look at the “best interests of the child” test to determine if the guardians appointed in the will are appropriate for the child/children.  Making a thoughtful guardianship appointment in your will, though, can help a court make the proper decision.  Your lawyer can explain this in greater detail.

This is only a sample of what problems can arise when someone dies “intestate.”  The cost, time, and expense of having a proper will done up by a professional is more than made up for by the cost, time, and expense that next-of-kin must endure when one dies intestate.  You can look at it as a one-time insurance premium, that, when done properly, can protect you and your family from financial and emotional anguish for years to come.