No will. Who gets what?
If you were like most little kids, whenever you got your hands on something good you claimed it by yelling ″MINE″ - especially if another little kid was eyeing up your toy from around the corner. Hopefully your methods of acquiring the things you want are slightly more refined now, but either way chances are you′ve had to spend a lot of time working to obtain the things you need and want.
In a will, you can designate who you want those things to go to. The people who you designate to receive items are your beneficiaries. If you die without a valid will, your provincial government has preset rules that will determine who will be your beneficiaries:
No spouse, no kids
No will, no kids and no spouse = your parents will be your sole beneficiaries if you die without a will. If both of your parents are alive, they will each get half of your estate. If only one of them is alive, that parent will get all of your estate. If neither of your parents are alive, your estate will be divided equally among your siblings. That′s right - the people who used to steal your toys, tell on you, and embarrass you in front of your friends now get everything you own. If none of your siblings are alive, it will go to your nieces and nephews. If you were an only child, it will go to your aunts and uncles.
Spouse, no kids
If you are married and you die without a will, your spouse will get everything. This usually reflects what people would have wanted if they had made a will, but consider this: if two people die so closely together that it cannot be determined who died first (think car accident or plane crash), under Alberta law the older person is considered to have died first. If this happens to a married couple and neither of them have a will, all of the elder spouse′s stuff will transfer to the younger spouse, and then younger spouse′s estate (which now consists of everything they both owned) will transfer to the younger spouse′s parents/siblings/nieces and nephews. The elder spouse′s family won't be entitled to anything the couple owned. There are clauses that can be added to a will to ensure this scenario is avoided.
Married with Children
If you are married with children and you die without a will, in Alberta the first $40,000 of your estate will go to your spouse (in Saskatchewan, the first $100,000 of your estate goes to your spouse). If you have one child, the rest of your estate will be divided equally between your spouse and your child. If you have more than one child, your spouse will be entitled to 1/3 of the balance of your estate and the remaining 2/3 will be divided equally between your children. This can be a problem if your house forms a large part of your estate, as your spouse may be required to take out a bond or otherwise secure part of the value of your home for your child(ren). Even if you don't have a will, there are ways to avoid this. If both your name and your spouse′s name are on the title to your house as ″joint tenants″, the house will not form part of your estate; ownership will transfer directly to your spouse. An estate lawyer can help you figure out these kinds of things.
A will allows you to structure the balance of distribution between your spouse and your kids as best fits your situation. If you have minor children, perhaps you want your spouse to take control of your entire estate, as you trust that your spouse will continue to take care of your kids. If you remarried later in life, perhaps you want to leave your estate solely to your kids as you know your spouse can adequately care for themselves with the property he or she held before you got married.
Kids but no spouse
If you have kids but no spouse and you die without a will, everything goes to your kids in equal shares. Your money will be held in trust for each kid until they are no longer a minor (18 years old in Alberta, 19 in Saskatchewan and B.C.). Think back to when you were in your late teens. Would it have been a good idea for someone to give you a whole whack of cash without any rules about how you spend it? If you have a will, you can stipulate that your kids are to receive certain percentages of your estate at set ages (e.g. 25% at 18 years old, 25% at 21 years old, and the rest at age 25).
Separated or Divorced
In Alberta, getting divorced does not automatically nullify a will you made while you were married. If you don′t take steps to cancel your will, the person that just caused you to spend a small fortune on lawyers while you fought over who got what will now get to keep everything you intended to give them when you still thought they were the most amazing person on the planet. To avoid this, you need to revoke the will you made while you were married by either destroying it and all copies of it, signing a statement stating that you revoke it, or making a new will which includes a statement that you revoke all prior wills (a standard clause that is included at the start of most wills).
There are many other reasons to have a will beyond controlling who gets your stuff, but hopefully these examples get you thinking about estate planning. If there is a situation that I have not addressed above that you would like more information about, please feel free to contact me and I'll try to find the answer for you. Now if you′ll excuse me, my cat seems suspiciously interested in what I brought home for supper, so I better get into the kitchen and yell, ″MINE!″
About the Author
Cherity is a Calgary-based lawyer who realizes that at some point almost everyone will need to work with a lawyer, and feels it is a lawyer's job to help clients understand their options so that they can make the decision that best suits their situation.
Cherity's work experience combined with her unique assortment of local and international post-secondary education assists her in understanding and addressing the concerns and needs of her clients. She has worked with businesses of all sizes during her 15 years in the Alberta business community, including all of the major Canadian sports networks, local television stations, and her current full-time position as in-house counsel for a Calgary-based company with international operations.
Cherity grew up in rural Saskatchewan, and credits that background for her common sense, work ethic, and love of hockey.
