“What if everyone dies?”

In 2008, my entire family went on a vacation. My grandparents boarded the plane with their children, in-laws, and grandchildren. My grandmother jokes about it now: “It’s a good thing the plane didn’t go down. Who would get my stuff?”

When you come in to have a will done up, you probably have a pretty good idea of who you want to leave your property to. What you might not be prepared for is when we start asking the follow-up question: What happens if they die first?

If I am helping you with your will, chances are, you’re going to hear that exact story about my grandmother. Having an alternate personal representative (aka an executor) or two, and alternate beneficiaries will help ensure you retain control over where your property goes when you pass.

Say, for example, you leave $500 to “Taylor” in your will. Taylor would be a non-residuary beneficiary who receives a specific gift. However, if Taylor dies before you, the $500 would go to:

a) Your named alternate beneficiary for that gift;

b) If no alternate beneficiary is named, and Taylor is your descendent, then to Taylor’s children if Taylor is your child;

c) If Taylor is not your descendant or doesn’t have children, then the gift falls into the residue of the estate and is distributed among the surviving residuary beneficiaries; and

d) If you have no residuary beneficiaries, then as if you died without a will (an “intestacy” – see explanation below).

Your residuary beneficiaries are the people who will receive the remainder of your property once your personal representative has paid all debts and expenses of the estate, and given out the specific things you have gifted to certain people.

If you don’t have a will when you die, then you are “intestate.” If you die intestate, the government has laws to determine who will receive your property. These laws were drafted to try and leave your property in the way an average person would most likely want it left, but might not reflect your actual wishes, which is why it is so important to have a valid will.

For example, if you passed away with no will and had a spouse/partner (“spouse”) but no children, then your spouse would receive all of your property (regardless of how long you have been married)*. Things could change if you have children. If your children are also your spouse’s children, then your spouse would still receive your property upon your death. However, if you have children from a previous relationship and pass away without a will, then your current spouse may have to share your property with your children, depending on the net value (what is actually available to distribute to beneficiaries after the payment of all debts and expenses) of your estate.

If you don’t have a current partner and/or don’t have children, the law will follow your family tree in a specific pattern to find other family members to inherit your property. This pattern gives priority to certain family members to inherit before others, based on the closeness of the relationship — your parents would inherit before your siblings, but your siblings would inherit before your grandparents.

While many people hope to one day hear news that they inherited money from a long lost and far removed relative, the legislation in Alberta only takes this so far. Anyone that is more than four degrees of separation away from you would not receive anything. If there is no one within the legislation that can inherit your property, then it would ultimately “vest in the Crown” and the government would step in.

Please keep in mind that the law regarding wills and the distribution of estates is provincial in nature, meaning that it can, and sometimes is, different in other provinces.  If you or a loved one live in another province, please ensure that you seek legal advice from a lawyer who practices in this area of law in that province.

As for my grandmother, I would hope her next lawyer asked her what she wanted to happen in the case of a common disaster or family tragedy, and ensured that her documents were drafted in accordance with her wishes.

While we hope this information was useful, it is not legal advice. If you wish to discuss estate planning or updating your will, please give our office a call!

* a distribution to a spouse or adult interdependent partner may be different if you and your spouse or partner were separated for a period of time prior to your death

Cheyla Lachowsky graduated with her law degree from the University of Alberta in 2020. She returned to her hometown of Stettler to complete her articles with Schnell Hardy Jones LLP. During law school she volunteered with the Pro Bono Students Canada (PBSC) Wills Clinic.