Probate, if there is no will, cannot be applied for and will not be granted. Instead, you can apply for to the court for a Grant of Administration.
When a person dies without leaving a will, they are what is termed intestate. In Alberta, the Wills and Succession Act governs the distribution of intestate estates. The Surrogate Rules list who can apply for the Grant of Administration allowing for the administration of the estate.
Then Court's View When There is No Will
When a person is intestate in Alberta, the court assumes that he or she would have wished for the estates to go to family. Family is considered spouses and adult interdependent partners and the deceased's descendants. Unborn children (already in the womb at the time of the deceased's death) are considered legal descendants.
The deceased's spouse or adult interdependent partner can receive the entire estate if the deceased's children are also the children of the spouse/partner. If there are children that are not the intestate's spouse/partner's children, the estate is shared between the spouse/partner and the children.
If the deceased person does not have a spouse or adult interdependent partner but does have children, the estate is divided into as many shares as there are children. The children of the deceased's predeceased children can have their parent's share of the estate.
If an intestate has no surviving spouse/partner and no descendants, Alberta law uses a parentelic system of inheritance. First rights go to the parents of the deceased, then the deceased's brothers and sisters or their descendants. Following that, distribution would go to grandparents, their descendants, and then great grandparents and their descendants.
If there is no one to inherit the estate, it goes to the Alberta government under the Unclaimed Personal Property and Vested Property Act.
Deciding on the Administrator of an Estate Without Will
Only certain people are entitled to apply for a Grant of Administration when there is no will, and the application should be made by the person who has the highest priority and is willing and able.
People with priority can renounce and people at the same level of priority can apply. If no one at the level wants to apply, people at a lower level of priority can apply. If the estate is bankrupt and no family is willing to apply, a creditor can apply. The Crown can also apply.
The priority levels are as follows:
- Surviving spouse or adult interdependent partner
- Other issue of the deceased
- Children of siblings
- Other next of kin
If the family cannot agree on who should apply for the Grant of Administration and act as administrator when there is no will, the court will decide. The court may elect to appoint a neutral personal representative, such as a trust company, to administer the estate.
Applying for a Grant of Administration
If the estate is intestate, you apply for a Grant of Administration, not a Grant of Probate. The process is the same but some of the documents you will be sending to court will be different.
You do not need to hire an estate lawyer when applying for a Grant of Administration but it is wise to at least speak to a lawyer before making the application. If the estate is complex or there is a chance of disputes within the family, you may be putting yourself at significant risk by taking on the administration of the estate.
Once you have received a Grant of Administration, only the court can release you from the role of administrator. If the situation becomes challenging in the future, you may not be able to get out of it. Your lawyer can advise you on whether you are the right person to apply for the grant and how you can mitigate any risks.
Once the Grant of Administration is received, the administrator has the same powers and duties as the executor appointed in a will would have had, so it is basically probate without a will. As with executors, administrators must put the interests of the estate and the beneficiaries ahead of their own interests and are expected to act in an honest, straightforward, and timely manner.
(Note: the term “personal representative” is the current legal term used to refer to an executor/executrix, administrator/administratix, and judicial trustee.)