Dealing with a Death in the Family

Law

When a loved one dies, you may have many legal issues to consider. See the sections below to learn about:

  • The differences between expected death and unexpected death
  • First steps to take after your loved one dies
  • Organ and tissue donation
  • Death records and death certificates
  • Cremation and burial options
  • Funerals, memorial services, and other ceremonies
  • Concerns if your spouse or partner has died
  • Financial benefits for surviving loved ones
  • Being a Personal Representative
  • Managing the estate if there was no Will
  • Managing the estate if there was a Will (including probating the Will)
  • Managing the estate of a deceased Status Indian

Choose the Process tab above for forms you may need and detailed information about the court process.

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here

Last Reviewed: May 2017
Who is this Information Page for?

This Information Page contains information about legal issues to consider when you are dealing with a death in the family.

In general, the law and process on this Information Page is for people who are dealing with

  • a death that occurred in Alberta, or
  • an estate that is located in Alberta.

This is because for Alberta law to apply, the deceased should have lived in Alberta and the deceased’s property should be in Alberta. If the deceased died outside of Alberta, or any part of the estate is located in another province, territory, or country, please see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says about dealing with a death in the family. For information on the processes you may need to follow when dealing with a death, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

adult

A person who is at least 18 years old. This is also called being “the age of majority.”

Be Aware

The age of majority is different across Canada. In Alberta, the age at which a person is considered an adult is 18.

minor

A person who is not yet an adult (has not reached the “age of majority”).

Be Aware

The age of majority is different across Canada. In Alberta, the age at which a person is considered an adult is 18.

spouse

A person who is legally married to another person.

common-law partner

In Alberta, the term “common-law” only applies to certain couples and only for certain federal laws (such as the Income Tax Act). Under most federal laws, the term “common-law” refers to a couple who has lived together in a romantic relationship:

  • for at least one year; or
  • for less than one year but they have a child together.

Under Alberta’s provincial laws, there is no such thing as “common-law” partners and “common-law” relationships. In Alberta, similar rights and responsibilities come from being in an “Adult Interdependent Relationship” (see below).

Be Aware

Under the federal Indian Act and the federal Family Homes on Reserves and Matrimonial Interests or Rights Act, the term “common-law” is used only for a couple who has been living together in a romantic relationship for at least one year (regardless of whether or not they have had a child together).

Adult Interdependent Relationship (AIR)

The term used in Alberta to describe what many people might think of as a “common-law” relationship.

A person is in an Adult Interdependent Relationship if he or she has been living with and in a “relationship of interdependence” with another person:

  • for 3 years; or
  • for less than 3 years if they have signed an Adult Interdependent Partner Agreement (see below); or
  • for less than 3 years if they have a child together (by birth or adoption).

A “relationship of interdependence” is a relationship where the partners are not married but they:

  • share one another’s lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.

The relationship does not have to be romantic or sexual to meet these requirements; it can be non-romantic (also called “platonic”).

Adult Interdependent Partner (AIP)

A person who is in an Adult Interdependent Relationship with another person.

Adult Interdependent Partner Agreement (AIPA)

A written contract in which 2 adults agree to become Adult Interdependent Partners. That contract must be in the form required by the Alberta Adult Interdependent Partner Agreement Regulation—see the following resource.

PDF Adult Interdependent Partner Agreement Regulation
Government of Alberta
English

next of kin

A person who is related to an individual by blood or adoption. It does not include a relative by marriage.

“pronouncing” a death

The official process of confirming that a person has died and recording the time of death. This is generally done by a doctor.

the deceased

A person who has died.

medical examiner (also called the Office of the Chief Medical Examiner)

A department (also called an “office”) of the government of Alberta that investigates deaths and provides death certification services.

Medical Certificate of Death

The medical form completed at the time of death by either the attending doctor or the medical examiner. This document has information about the medical cause of death. For each death in Alberta, the Medical Certificate of Death must be signed and completed by a doctor within 48 hours of the death. The Medical Certificate of Death is not the same thing as the Certificate of Death.

Certificate of Death

The official government document that confirms the death of a person. This document has details about the identity of the deceased and the date and place of death. It does not have information about the medical cause of death: that information is included in the Medical Certificate of Death (see above).

capacity

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are 2 parts to mental capacity:

  1. The ability to understand the nature of a decision. This includes understanding all of the information that is relevant to a particular decision.
  2. The ability to understand the consequences of making a decision. That is, a person with capacity would understand what could happen as a result of making a certain decision.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor's opinion or a judge's decision).

property (also called “assets”)

Something that you own. Property can be:

  • “personal property," such as bank accounts or vehicles; or
  • “real property,” such as land, a house, or a condominium.

debt

Money that is owed to another person, bank, or company. For example:

  • a loan;
  • the amount owed on your credit cards; or
  • something you are still making payments on (such as the living room furniture that you have another 18 months to pay off).

The state of owing money is called being “in debt.”

Will

A document that says what will happen to your “estate” after you die. Your estate might be all of your property, or it might only be some of your property (see the definition of “estate” below).

In your Will you also name your Personal Representative, who is the person who will be responsible for managing your estate after you die (see the definition of “Personal Representative” below).

Testator

The person who writes a Will.

holograph Will

A Will that is completely written in the Testator’s handwriting.

codicil

A document that makes a change to your existing Will. A codicil is a separate document that is attached to the original Will. Just like a Will, a codicil can be typewritten (printed) or completely written in the Testator’s handwriting.

estate

The property that you own at the time of your death and that will be passed to others through your Will. This process is called “passing through” your Will, or being “distributed through” your Will.

There are several kinds of property that are not included in your estate:

  • property that you held in “joint tenancy” with one or more other people;
  • insurance policies where you have named a beneficiary; and
  • retirement savings plans (such as pension plans, RRSPs, TFSAs, and RRIFs) that have a named beneficiary. See the definitions of RRSPs, TFSAs, and RRIFs below.

intestacy

The state of having died without leaving a Will. When someone dies without a Will, they are said to have died “intestate.”

Personal Representative

A person named to manage the estate of a person who has died.

There are 2 ways to become a Personal Representative:

  1. the person can be named as a Personal Representative in the Will of a deceased person; or
  2. a court appoints the person as a Personal Representative in a “grant of administration” (see below).

Executor

This is the old word for a person who was named in a Will to manage the estate of a person who has died. In Alberta, the correct legal term for this is now “Personal Representative.” However, you may still see the old word used in some legal materials. Also, the term “Executor” is still used to refer to a person who administers the estate of a deceased Status Indian.

Administrator

This is the old word for a person who was appointed by a court to manage the estate of a person who has died. In Alberta, the correct legal term for this is now “Personal Representative.” However, you may still see the old word used in some legal materials.

probate (also called a “grant of probate”)

A court process to confirm that:

  • a Will is authentic (for example: not fake or forged);
  • a Will is legally sound (for example: it was not signed by a person who lacked the capacity to sign a Will); and
  • the person named in the Will as the Personal Representative has the authority to administer the Testator’s estate according to the terms of the Will (for example: the person who was named as Personal Representative still has capacity, and there is no other legal reason to not allow that person to be the Personal Representative).  

To get probate, special forms must be submitted to the Alberta Court of Queen’s Bench Surrogate office.

grant of administration

A court process that appoints someone to be the Personal Representative of a deceased person’s estate. This usually happens when the deceased person has died without leaving a Will.

This term is also used to describe a process under the Indian Act, where the minister of Indigenous and Northern Affairs Canada appoints a person (such as a relative) to administer the estate of deceased Status Indian. This will happen whether the deceased Status Indian left a Will or not.

bequest

A gift of property that is left to a beneficiary in a Will.

revoke

To withdraw or cancel the effect of something. A document that is revoked is no longer valid. For example, a licence, a Will, or a law could be revoked. If you revoke your Will, it will no longer apply if you die. You would need to make another Will to replace it.

“maintenance and support”

Money that one person is required by law to pay for the care and support of another person. If someone dies and they have dependent family members, this money may be taken from their estate.

beneficiary

A person who gets money or property (a “benefit”) because they are named as the recipient of that benefit in a legal document. The benefit can come from different things, such as:

  • a life insurance policy;
  • someone’s Will; or
  • a trust. (A trust occurs where another person legally owns and takes care of the property for the benefit of the beneficiary.)

to hold property in trust

A relationship where one person (a “trustee”) legally holds property for the benefit of another person (a “beneficiary”). The trustee manages the property and collects income from the property, and then passes the income on to the beneficiary.

This happens often with children, because children are too young to hold and manage property themselves.

trustee

A person who legally holds property for the benefit of another person (who is called a “beneficiary”).

trust company

A corporation that can act as a trustee on behalf of a person or a person’s estate. The trust company manages the assets and eventually transfers the estate’s assets to the beneficiaries. In a Will, a trust company can be named as the Personal Representative.

Public Trustee

A department (also called an “office”) of the government of Alberta that protects the financial assets and well-being of clients of the Office of the Public Guardian and Trustee. 

Clients can include:

  • children under the age of 18 (the age of majority),
  • the estate of a deceased person,
  • adults without capacity,
  • prisoners, and
  • missing persons.

Generally, people become clients of the Office of the Public Guardian and Trustee through court orders, the requirements of the law, or when a family member applies on their behalf.

Designation of Beneficiary form

A special form where you state who will receive a particular asset if you die. Then, when you die, the asset goes directly to that person: it does not pass through your Will and does not form part of your estate. If you want the asset to pass through your Will, you can name your “estate” as the beneficiary.

Only some kinds of assets are legally allowed to have Designation of Beneficiary forms. Examples include: pension plans, life insurance, RRSPs, RRIFs, and TFSAs. See the definitions of RRSPs, TFSAs, and RRIFs below.

Registered Retirement Savings Plan (RRSP)

A special kind of account that is registered with the federal government, which you use to save for retirement. The money you put into an RRSP is not included as “income” on your tax return when you deposit it, so you do not pay “income tax” on that money during that year. Instead, you will pay income tax on that money when you take it out of the account.

Every year, you are allowed to contribute a certain percent of your income to your RRSP. All of the money in your RRSP can grow tax-free during the time it is in that account.

When you open an RRSP, you will be asked to fill out a “designation of beneficiary” form. Your beneficiary can be updated later if you want or need to change it.

Registered Retirement Income Fund (RRIF)

A special kind of account that is registered with the federal government, which you can use to withdraw income during your retirement. People will often use RRIFs when they are no longer eligible to keep an RRSP (after they turn 71), but you can open an RRIF at any time. Funds in an RRIF can grow tax-free just like funds in an RRSP.

However, an RRIF is different from an RRSP:

  • You can no longer contribute any money to the account.
  • You are required to withdraw a certain percentage of the RRIF each year. The percentage is based on your age.

In other words, you use an RRSP to save for retirement, but you use an RRIF to spend your retirement income.

When you open an RRIF, you will be asked to fill out a “designation of beneficiary” form. Your beneficiary can be updated later if you want or need to change it.

Tax-Free Savings Account (TFSA)

A special kind of account that is registered with the federal government, which you can use to save money. Unlike with regular savings accounts, the income earned on the money in a TFSA is completely tax-free, while it grows in the account and when you take it out of the account. Every year, there is a maximum amount of money that you are allowed to deposit into a TFSA.

When you open a TFSA, you will be asked to fill out a “designation of beneficiary” form. Your beneficiary can be updated later if you want or need to change it.

digital asset

A person’s electronic possessions, including virtual property such as:

  • emails,
  • digital photos,
  • videos,
  • tweets,
  • texts,
  • music,
  • e-books, and
  • online account information for websites or programs such as Facebook, LinkedIn, Instagram, bank accounts, store accounts, PayPal, and any others.

Digital assets can have a financial value. For example, an online tool or website may make money or cost the owner something. Or, digital assets may only have sentimental value. For example, the photos of a family member.

Someone’s combined digital assets are sometimes called their “digital estate.”

joint tenancy

When 2 or more people own all of an asset together, that property is held in “joint tenancy.” Each person involved is called a “joint tenant.” For example: a joint bank account. Under joint tenancy, all of the joint tenants own all of the money in the bank account (not just their “share”). If one of the joint tenants dies, the entire account goes to the surviving joint tenant(s): the property is not part of the deceased’s estate.

tenancy in common

When 2 or more people own an asset together, but each owns a portion, that property is held in “tenancy in common.” Each person involved is called a “tenant in common.” For example: land. Under tenancy in common, each of the tenants owns a portion (or share) of the value of the land. If one of the tenants in common dies, that person’s portion does not automatically go to the other owner(s). Instead, that portion goes through the Will of the deceased.

“in good faith”

With good and honest intent. If something is done in good faith, it is done sincerely and honestly. If you act in good faith, you believe that what you are doing is right and legal, and you have no reason to question your motives.

Indian Act

The main law through which the federal government administers Aboriginal issues, including:

  • “Indian” Status;
  • Status Indians’ Wills and estates;
  • First Nations’ governments;
  • band administration; and
  • the management of reserve lands and communal funds.

Indian

A person who has “Indian status” under Canada’s Indian Act. This term was originally used by Europeans to identify indigenous people of South America, Central America, and North America. Although it is no longer commonly used to refer to Aboriginal people, it is still the “legal” term required by the Indian Act.

Indian band (also called “First Nation”)

A group of Aboriginal people who:

  • have been declared to be a band for the purposes of the Indian Act (the Act defines certain Aboriginal people as “Indians”);
  • live on reserve lands that have been set apart for their collective use and benefit; and
  • have money held for them by the Government of Canada (also called “the Crown”).

Most bands hold reserve lands, but bands and band members do not legally own the land because the legal title belongs to the Crown and is “held in trust” (see the definition above) for the band by the Crown.

A more modern term used for a band is “First Nation.” The terms “band” and “First Nation” are also used to describe the government of the group and its reserve. Many band governments also represent members who live off-reserve. Bands can also govern non-band members who live on the band reserve and/or work for the band.

reserve

Land set aside under Canada’s Indian Act and treaty agreements for the exclusive use of an Indian band. Band members have the right to live on reserve lands, and band government and administration is often located there.

Indigenous and Northern Affairs Canada (INAC)

The federal government department that supports Aboriginal people (First Nations, Inuit, and Métis) in Canada. From 2011 to November 2015, this department was called “Aboriginal Affairs and Northern Development Canada” (AANDC). Because the change in name is still quite new, some resources and even the department’s own website may still show the old name. Before 2011, the department was called Indian Affairs and Northern Development (IAND).

The laws that may apply to you

You may wish to read the laws (also called “statutes” or “acts”) that apply to your situation. The laws included on this Information Page are:


Web Estate Administration Act
Government of Alberta
English
This law changed in 2015. The old law was called the Administration of Estates Act. When doing your research, be sure to rely on current resources.


Web Dower Act (and associated Regulations)
Government of Alberta
English

Web Minors' Property Act (and associated Regulations)
Government of Alberta
English
 
Web Public Trustee Act (and associated Regulations)
Government of Alberta
English

Web Funeral Services Act (and associated Regulations)
Government of Alberta
English

Web Cemeteries Act (and associated Regulations)
Government of Alberta
English

Web Public Health Act (and associated Regulations)
Government of Alberta
English
See “Bodies of Deceased Persons Regulation.”

Web Vital Statistics Act (and associated Regulations)
Government of Alberta
English

Web Fatality Inquiries Act (and associated Regulations)
Government of Alberta
English



Web Indian Act
Government of Canada
English


Web Canada Pension Plan (R.S.C., 1985, c. C-8)
Government of Canada
English

When reading laws, you also need to know about the “regulations” associated with those laws. Each of the links above takes you to a page that lists the laws as well as the regulations that go with them. For more information on laws and regulations, see the Our Legal System Information Page.

If there are concerns about family violence or abuse

Has there been any domestic abuse in the family? It is very important to recognize and admit this, both to yourself and to any organizations you approach for help. Patterns of abuse can continue after the death of a loved one. Sometimes, due to the high level of emotion, they can even get worse.

There are many ways abusive behaviour can be connected to a death. For example:

  • A person who abused the deceased may now be the Personal Representative. He or she may use this position to keep beneficiaries from getting their bequests and may try to increase his or her own share of the estate.
  • An abusive family member may try to abuse the Personal Representative or the beneficiaries. He or she may try to pressure others to give up their shares of the estate or other property that was left to them by the deceased.
  • An abusive family member may claim that the Will and designation of beneficiary forms are invalid. For example: he or she may claim that the deceased did not have capacity when the documents were signed.
  • An abusive family member may have forced the deceased to sign the Will and designation of beneficiary forms.

If there has been domestic abuse in your family, some things to keep in mind:

  • Be honest and upfront about it. Violence does not go away on its own. See the What is Family Violence? Information Page for more information.
  • It is never your fault. The responsibility belongs only to the abuser.
  • There is no single right way to proceed—it will depend on the exact details of your case.
  • There are criminal laws and protective laws that might be able to help.
  • Abusive situations are complicated. Consider talking to a lawyer (or another person who is helping you with your legal issues) about the best way to proceed. See the Community Legal Resources & Legal Aid and the Working with a Lawyer Information Pages for more information about your legal options.

Some of the resources on this Information Page have both general family law information as well as how that information applies in situations of family violence. Where appropriate, resources specific to situations of domestic violence are noted with this icon:

Family Violence

 

Be sure to read these resources thoroughly, because it is sometimes difficult to understand what to do in situations of violence without understanding the legal picture in general.

Pronouncement of death

The “pronouncement of death” is the official process of confirming that a person has died and recording the time of death. This is generally done by a doctor.

In the following sections you will notice that there are several different laws that can affect the pronouncement of death. It will depend on:

  • when the death occurs;
  • where the death occurs; and
  • the circumstances of the death.

The pronouncement of death is the first step. Then a Medical Certificate of Death must be signed and completed by a doctor. Alberta’s Vital Statistics Act says this must be done within 48 hours of the death. This helps to ensure that a death that should be investigated is not treated as a death from natural or expected causes. For more information, see the “Was the death expected?” section below.

The pronouncement of death is also important if the deceased wished to donate organs and tissue upon their death. The donor must first be pronounced dead before the organs and tissue can be donated. This makes it clear that the death was not caused by the removal of the organs or tissues. For more information, see the “Organ and tissue donation” section below.

If you are with your loved one at the time of death, or if you are there shortly after death, you can expect the pronouncement of death to occur.

For more information about the pronouncement of death, see the following resources.

PDF Alberta Health Services Medical Staff Rules
Alberta Health Services
English
See p. 40-41.

PDF Pronouncement of Death: Guidelines for Regulated Members
College and Association of Registered Nurses of Alberta
English
Was the death expected? And why does it matter?

There is no legal definition of the term “expected death.” Instead, the law outlines situations in which a death would not generally be expected. In these situations, the death would be surprising in some way. If a death does not fit into one of these situations, then it would be called an “expected death.”

Sometimes, a person’s death can be clearly expected. For example: when a person is in palliative care. In other situations of illness or injury, a medical team might determine that death is expected and explainable.

This is important because the law treats expected deaths differently than unexpected deaths:

  • When a death is expected, the death does not have to be reported to Alberta’s medical examiner.
  • Unexpected deaths do have to be reported to medical examiner.

The law that governs this issue is section 10(2) of Alberta’s Fatality Inquiries Act. It says that the medical examiner must be notified of any deaths that occur:

  • without an initial explanation;
  • unexpectedly when the deceased was in apparent good health;
  • as the result of violence, accident, or suicide;
  • during or following pregnancy and that might be related to pregnancy;
  • as the possible result of improper or negligent medical treatment;
  • during an operation, or within 10 days after an operation;
  • while under anesthesia, or that may be the result of anesthesia;
  • as a result of poisoning;
  • while the deceased person was not under the care of a doctor;
  • while the deceased person was in the custody of a peace officer, or as a result of the use of force by a peace officer while on duty; or
  • while the deceased was working.

The medical examiner is a doctor who works at Alberta’s Office of the Chief Medical Examiner. This is a department of the Government of Alberta that investigates deaths and provides death certification services. For more information, see the following resources.

Web Office of the Chief Medical Examiner
Government of Alberta
English

Web Death investigations
Government of Alberta
English

Web Information for physicians: reporting a death
Government of Alberta
English

Immediate concerns: When death was expected

If the death occurred at home

If your loved one’s death was expected, you have 3 options to have the death pronounced:

  1. You can contact the doctor who was caring for the deceased, and he or she will be able to pronounce the death.
  2. You can call 911.
  3. You can contact a funeral home and request that the deceased be transferred into the care of the funeral home immediately. The funeral home and the doctor will then work together to pronounce the death, complete the Medical Certificate of Death, and register the death.
Remember

Under the Vital Statistics Act, the Medical Certificate of Death must be completed within 48 hours of death.

There are no time requirements for moving your loved one’s body from the home. You can take the time you need to attend to your family’s needs. If it is late at night, you may wait until morning before arranging to move your loved one.

Be Aware

Your loved one may have already made arrangements with a funeral home and may have even prepaid for everything. If you think that might be the case, check if there is a Will or other paperwork that gives instructions.

If the death occurred in a hospital

When the death occurs in a hospital, the hospital staff will:

  • pronounce the death;
  • complete the Medical Certificate of Death; and
  • register the death.

Under the Operation of Approved Hospitals Regulation, a body cannot be moved until a doctor has:

  • examined it; and
  • noted the time of death on the medical record.

The doctor will complete the Medical Certificate of Death within 48 hours of death, as required by the Vital Statistics Act.

After the pronouncement of death, the deceased will be brought to the hospital’s morgue. This is called “sheltering.” It usually occurs within a few hours of death. While the deceased is being sheltered, family and other loved ones can often still see the deceased in a viewing room. There are no legal time requirements for moving your loved one’s body from the hospital morgue. You can ask for time to attend to your family’s needs. However, the hospital may have a policy that deals with this issue.

At any point after the death, the family can call a funeral home to arrange for the body to be picked up. Each hospital has its own policy about how quickly the body must be picked up: ask hospital staff. Because the deceased is being sheltered in the hospital, pickup generally occurs during normal business hours. Before transferring the deceased from the hospital, someone from the funeral home will meet with the family to sign a hospital release form.

Be Aware

Your loved one may have already made arrangements with a funeral home and may have even prepaid for everything. If you think might that might be the case, check if there is a Will or other paperwork that gives instructions.

If the death occurred in another kind of care facility

A care facility that is not a hospital covered by the Hospitals Act may have a doctor on staff, but they are not required to have one.

If the facility has a doctor, that doctor may pronounce the death. The doctor may or may not have been treating your loved one. The care facility will usually make arrangements for the doctor to complete the Medical Certificate of Death and register the death.

If the facility does not have a doctor, you can call a doctor who has been caring for your loved one to pronounce the death and complete the Medical Certificate of Death. Or you can call 911.

Unlike hospitals, care facilities do not have a morgue where the deceased can be kept after death. Instead, each facility has its own policy about how long the deceased can stay in his or her room. This is often only a few hours. As a result, you will need to contact a funeral home to arrange for the body to be picked up. The staff at the care facility can usually help with this. Most funeral homes can pick up a body at any time of day or night.

Be Aware

Your loved one may have already made arrangements with a funeral home and may have even prepaid for everything. If you think that might be the case, check if there is a Will or other paperwork that gives instructions.

Who is responsible for making the decisions?

When a loved one dies, there are many decisions to be made immediately. For example:

  • Who calls the doctor?
  • Is a funeral home going to be involved? If so, which one?
  • When exactly should the body be moved from the home or facility?

It can be a confusing time. It is sometimes difficult to know who should make the decisions.

Section 36(2) of the General Regulation to the Funeral Services Act (Alberta Regulation 226/98) says who has responsibility to decide what happens to the deceased’s remains.

According to this law, if the deceased wrote a Will that names a Personal Representative, then the Personal Representative has the responsibility (unless a court has ordered otherwise). If there is no one who meets that description, the responsibility falls to the following people (listed in the order they will be considered):

  • the spouse or Adult Interdependent Partner of the deceased, as long as he or she was living with the deceased at the time of death (see the note below about exceptions to this rule);
  • an adult child of the deceased;
  • a parent of the deceased;
  • a Guardian of the deceased under the Adult Guardianship and Trusteeship Act or, if the deceased is a minor, under the Child, Youth and Family Enhancement Act or the Family Law Act;
  • an adult grandchild of the deceased;
  • an adult brother or sister of the deceased;
  • an adult nephew or niece of the deceased;
  • an adult “next of kin” of the deceased as defined in the Wills and Succession Act;
  • the Public Trustee;
  • an adult person having some relationship with the deceased not based on blood ties;
  • the Minister of Human Services.
Be Aware

The General Regulation to the Funeral Services Act says the deceased and his or her spouse or Adult Interdependent Partner are still considered to have been living together if: 1) they were only apart because one of them had been living in a care facility; or 2) they were apart for reasons other than a breakdown in the relationship.

If a person with priority is either unable or unwilling to make the decisions, the right goes to the next available qualified person, in the order listed.

Sometimes loved ones are not sure if there is a Will. Or, there may be a Will somewhere but no one has access to it. If this is the case, medical staff and funeral homes will usually turn to the family in the order described above. Sometimes, there may be some confusion about which family member to take instructions from. This generally gets sorted out soon, especially if the Will is located and the Personal Representative is identified.

More information

For more information about expected death, see the following resources.

Web Physical Signs of Approaching Death
Alberta Funeral Service Association
English

Web Social/Emotional Signs of Approaching Death
Alberta Funeral Service Association
English

Web How Will I Know Death Occured?
Alberta Funeral Service Association
English

Web Who To Call First?
Alberta Funeral Service Association
English

Web Family Emergency
Alberta Funeral Service Association
English
Immediate concerns: When death was not expected

Involving the police and medical examiner

If your loved one’s death was unexpected, usually the police should be informed. You do this by calling 911. The police will start an investigation and contact the local medical examiner (ME). In some areas, this job is called a “coroner,” but in Alberta the correct term is “medical examiner.”

However, if the unexpected death occurred in a hospital or long-term care facility, the staff will generally contact the medical examiner. The staff or ME may also call the police if they think there is a need.

The involvement of the ME in unexpected death is required by law. Specifically, the law requires that the medical examiner be notified of all deaths that occur:

  • without an initial explanation;
  • unexpectedly when the deceased was in apparent good health;
  • as the result of violence, accident, or suicide;
  • during or following pregnancy and that might be related to pregnancy;
  • as the possible result of improper or negligent medical treatment;
  • during an operation, or within 10 days after an operation;
  • while under anesthesia, or that may be the result of anesthesia;
  • as a result of poisoning;
  • while the deceased person was not under the care of a doctor;
  • while the deceased person was in the custody of a peace officer, or as a result of the use of force by a peace officer while on duty; or
  • while the deceased was working.

In any case of accidental death, suicide, workplace death, or suspected homicide, the death must be investigated and the Medical Certificate of Death completed by the Office of the Medical Examiner. The police and the ME will have the body transferred to either a hospital or an examination centre. Personal items of the deceased that are related to their death may be kept for the investigation.

During the investigation, the police will tell the medical examiner what they find, and the ME will decide if further work is needed to determine the cause of death.

If no further work is necessary, you may then call a funeral home to remove the body and carry out the final wishes of the deceased.

Be Aware

Sometimes when death is unexpected, the place where the body was found may be closed off by the police while they do their investigation. This can include surrounding the area with police tape and keeping all other people out of the area. This can surprise loved ones, even though it may seem normal to the police. Be sure you ask the police about what is and is not permitted at this time.

For more detailed information, see the following resources.

Web Information for physicians: reporting a death
Government of Alberta
English

Web Death investigations
Government of Alberta
English

Autopsies

The medical examiner will decide if an autopsy is required. An autopsy is the examination of a body, to understand and determine the cause of death or any factors that may have contributed to the cause of death.

The medical examiner may authorize an autopsy if there is reasonable doubt about the medical cause of death. Most commonly an autopsy will be done if the death:

  • seems suspicious or unnatural;
  • occurs while a person is in prison or in a psychiatric hospital; or
  • is a homicide.

Even if an investigation is not required by law, or if the medical examiner does not authorize an autopsy, you can still ask for an autopsy. However, you may have to pay for the autopsy.

For more information about autopsies, see the following resources.

Web Autopsy: Test Overview
Government of Alberta
English

Interactive Autopsy: Should I Have an Autopsy Done on My Loved One?
Government of Alberta
English


Web Autopsies
Centre for Public Legal Education Alberta
English

 

Public fatality inquiries

Sometimes, the medical examiner will suggest that a public fatality inquiry should be held. The Fatality Review Board decides if an inquiry is needed.

Public fatality inquiries are held by a judge of the Provincial Court of Alberta. However, it is not a trial. Instead, it is a fact-finding investigation where witnesses are called and evidence is presented. It is meant to:

  • review the circumstances of a death;
  • find out how the death occurred; and
  • make recommendations to reduce the risk of this kind of death in the future.

At the end of the inquiry, the judge will write a report. This report will be available to the public.

For more information about public fatality inquiries, see the following resources.

Web Public fatality inquiries
Government of Alberta
English

Web Fatality inquiry reports
Government of Alberta
English

 

Who is responsible for making the decisions?

When a loved one dies, there are many decisions to be made immediately. For example:

  • Who calls the doctor?
  • Is a funeral home going to be involved? If so, which one?
  • When exactly should the body be moved from the home or facility?

It can be a confusing time. It is sometimes difficult to know who should make the decisions.

Section 36(2) of the General Regulation to the Funeral Services Act (Alberta Regulation 226/98) says who has responsibility to decide what happens to the deceased’s remains.

According to this law, if the deceased wrote a Will that names a Personal Representative, then the Personal Representative has the responsibility (unless a court has ordered otherwise). If there is no one who meets that description, the responsibility falls to the following people (listed in the order they will be considered):

  • the spouse or Adult Interdependent Partner of the deceased, as long as he or she was living with the deceased at the time of death (see the note below about exceptions to this rule);
  • an adult child of the deceased;
  • a parent of the deceased;
  • a Guardian of the deceased under the Adult Guardianship and Trusteeship Act or, if the deceased is a minor, under the Child, Youth and Family Enhancement Act or the Family Law Act;
  • an adult grandchild of the deceased;
  • an adult brother or sister of the deceased;
  • an adult nephew or niece of the deceased;
  • an adult “next of kin” of the deceased as defined in the Wills and Succession Act;
  • the Public Trustee;
  • an adult person having some relationship with the deceased not based on blood ties;
  • the Minister of Human Services.
Be Aware

The General Regulation to the Funeral Services Act says the deceased and his or her spouse or Adult Interdependent Partner are still considered to have been living together if: 1) they were only apart because one of them had been living in a care facility; or 2) they were apart for reasons other than a breakdown in the relationship.

If a person with priority is either unable or unwilling to make the decisions, the right goes to the next available qualified person, in the order listed.

Sometimes loved ones are not sure if there is a Will. Or, there may be a Will somewhere but no one has access to it. If this is the case, medical staff and funeral homes will usually turn to the family in the order described above. Sometimes, there may be some confusion about which family member to take instructions from. This generally gets sorted out soon, especially if the Will is located and the Personal Representative is identified.

Death while outside of Alberta

The laws and procedures for investigating sudden death and returning the deceased to Alberta are different for each province, territory, and country. For more information, see the Ongoing Family Relationships and Out-of-Province Issues Information Page.

More information

For more information about dealing with unexpected death, see the following resources.


Web Information for physicians: reporting a death
Government of Alberta
English

Web Family Emergency
Alberta Funeral Service Association
English
Organ and tissue donation

Organ and tissue donation involves removing organs and tissues from someone and either:

  • transplanting them into other people who need them; or
  • using them for research or medical education.

When a person has died or is very close to death, that person, or the person’s loved ones, may be asked about donating some tissues or organs to help others.

In fact, medical staff are required to ask. This comes from section 7 of Alberta’s Human Tissue and Organ Donation Act. It says that the medical practitioner who makes the pronouncement of death must consider if the person’s tissue or organs are suitable for transplantation. And, the medical practitioner must document in the person’s medical record that this was done.

Ideally, the person would have thought about this issue in advance, and:

  • made his or her wish to donate known by signing the back of their Alberta health care card;
  • registered with the Alberta Organ and Tissue Donation Registry; and/or
  • included his or her wishes in a Personal Directive.

However, this is often not the case.

For detailed information about consenting to organ and tissue donation for a person who is dying or has recently died, see the Caring for & Decision-Making for a Family Member Information Page.

Be Aware

If the deceased planned to donate their body to science, then the deceased cannot also donate internal organs. For more information, see the “Donating a body to science” section below.

Donating a body to science

Universities across Canada accept body donations for medical research and teaching medical students. Many universities require pre-registration with consent of the donor. However, some may accept consent by the Personal Representative.

Be Aware

If the deceased is an organ donor, they may not be able to donate their body to science.

For more information, see the following resources.

PDF Planning Your Own Funeral in Alberta
Centre for Public Legal Education Alberta
English
See p. 11-12.



PDF Comfort, Hopes and Wishes: Making Difficult Health Care Decisions
Provincial Health Ethics Network
English
See Part 4.

Web Body Donation Program
University of Calgary
English
Use the links on the left of the page for more information.

Web Body Donation Program: Frequently Asked Questions
University of Calgary
English

Web Anatomical Gifts Program
University of Alberta
English

Web Anatomical Gifts Program
Alberta Funeral Services Regulatory Board
English
Death records: Medical Certificates of Death, registering the death, Certificates of Death, and making corrections

“Death records” is a term used for several different documents related to a death. Death records include:

  • Medical Certificate of Death
  • Registration of Death
  • Certificate of Death

These records are available from Service Alberta. See the following resources for more information about death records.

Web Death Certificates & Documents | How it works
Government of Alberta
English
​​
Web Available Death Documents
Government of Alberta
English

 

Getting a Medical Certificate of Death

Before anyone can register a death or get a Certificate of Death, a doctor must first complete the Medical Certificate of Death. This is the form completed at the time of death by either the attending doctor or the medical examiner. This document has information about the medical cause of death. For each death in Alberta, the Medical Certificate of Death must be signed and completed by a doctor within 48 hours of the death.

For more information about getting a copy of a Medical Certificate of Death, see the Process tab of this Information Page.

Registering the death

All deaths that occur in Alberta must be registered with the Alberta government within one year from the date of death. When a death isn’t registered within this time, there are additional requirements and a fee to register the death.

For more information about registering the death, see the Process tab of this Information Page.

Getting a Certificate of Death

The Certificate of Death is the official government document that confirms the death of your loved one. This document has details about the identity of the deceased and the date and place of death. It does not have information about the medical cause of death: that information is included in the Medical Certificate of Death.

All the information on a Certificate of Death is taken from the Registration of Death form. You cannot get a Certificate of Death if you have not registered the death. The information on the Certificate of Death includes:

  • full name of the deceased
  • age of the deceased at the time of death
  • date and place of death
  • gender of the deceased
  • marital status of the deceased at the time of death
  • usual place of residence of the deceased at the time of death
  • registration number, registration date, and date issued
Be Aware

Laminating or altering Certificates of Death makes them invalid.

Personal Representatives will need multiple original Certificates of Death. This because many of the organizations that you will be in contact with about the death will require an original Certificate of Death. Others may only ask for a copy.

For a sample Certificate of Death, see the following resource.

PDF Certificate of Death: Sample
Government of Alberta
English

For more information about getting a Certificate of Death, see the Process tab of this Information Page.

Tip

If you are using a funeral home, the funeral home can also provide you with copies of the Certificate of Death.

Correcting a death record

If you find an error on a death record, it can be corrected. For information about how to do that, see the Process tab of this Information Page.

Cremation and burial options

Cremation

Cremation is the process of burning the remains of the deceased. Cremation occurs at a crematorium in a special kind of furnace called a cremation chamber or retort. Any funeral home can help you arrange the cremation of your loved one.

Before a body can be cremated, the medical examiner must review the Medical Certificate of Death. The medical examiner will then issue something called a “Form 4,” which gives approval for the cremation.

Also, to cremate remains, you will first need a “burial permit.” Any funeral home can provide this. For information about getting a burial permit, see the Process tab of this Information Page.

Once cremation is complete, there are various options available to loved ones. For example, the cremated remains can be:

  • buried in a cemetery lot or cremation garden;
  • kept in an urn in a “columbarium,” which is a special room or building meant to hold urns;
  • kept at home; or
  • scattered in a green space (with permission from the land owner).

For more information about cremation, see the following resources.

PDF Planning Your Own Funeral in Alberta
Centre for Public Legal Education Alberta
English
See p. 9.



Web Burial or Cremation?
Alberta Funeral Services Regulatory Board
English


Web Funerals
Consumer Measures Committee
English

Web Funérailles
Consumer Measures Committee
French

Web Burial Permits
Government of Alberta
English

For information about alternatives to burial and cremation, see the following resource.

Burial

Burial is the process of placing the deceased’s remains into the ground. It is also called “interment.” Any funeral home can help organize a burial. 

To bury a deceased person, you must have a burial permit. Any funeral home can provide this. For information about getting a burial permit, see the Process tab of this Information Page.

Burials must be in registered cemeteries. You cannot bury a body on private land.

For more information about burial, see the following resources.

PDF Planning Your Own Funeral in Alberta
Centre for Public Legal Education Alberta
English
See p. 6-8.



Web Burial or Cremation?
Alberta Funeral Services Regulatory Board
English

Web Funerals
Consumer Measures Committee
English

Web Funérailles
Consumer Measures Committee
French

Web Green Burial Council: Find a Provider
Green Burial Council
English

Web Natural Burial Association: Find a Provider
Natural Burial Association
English

Who is responsible for making the arrangements?

Section 36(2) of the General Regulation to the Funeral Services Act (Alberta Regulation 226/98) says who has responsibility to decide what happens to the deceased’s remains.

According to this law, if the deceased wrote a Will that names a Personal Representative, then the Personal Representative has the responsibility (unless a court has ordered otherwise). If there is no one who meets that description, the responsibility falls to the following people (listed in the order they will be considered):

  • the spouse or Adult Interdependent Partner of the deceased, as long as he or she was living with the deceased at the time of death (see the note below about exceptions to this rule);
  • an adult child of the deceased;
  • a parent of the deceased;
  • a Guardian of the deceased under the Adult Guardianship and Trusteeship Act or, if the deceased is a minor, under the Child, Youth and Family Enhancement Act or the Family Law Act;
  • an adult grandchild of the deceased;
  • an adult brother or sister of the deceased;
  • an adult nephew or niece of the deceased;
  • an adult “next of kin” of the deceased as defined in the Wills and Succession Act;
  • the Public Trustee;
  • an adult person having some relationship with the deceased not based on blood ties;
  • the Minister of Human Services.
Be Aware

The General Regulation to the Funeral Services Act says the deceased and his or her spouse or Adult Interdependent Partner are still considered to have been living together if: 1) they were only apart because one of them had been living in a care facility; or 2) they were apart for reasons other than a breakdown in the relationship.

If a person with priority is either unable or unwilling to make the decisions, the right goes to the next available qualified person, in the order listed.

Sometimes loved ones are not sure if there is a Will. Or, there may be a Will somewhere but no one has access to it. If this is the case, funeral homes and other organizations involved with the final ceremony will usually turn to the family in the order described above. Sometimes, there may be some confusion about which family member to take instructions from. This generally gets sorted out soon, especially if the Will is located and the Personal Representative is identified.

Funerals, memorial services, and other ceremonies

What are the options?

People use many terms to describe the kinds of ceremonies that take place at the end of a person’s life. Examples include: funeral, memorial service, celebration of life, and farewell ceremony. There are no legal definitions for these terms, and many people and organizations use them interchangeably.

Traditionally, a funeral involves a service at a funeral home or place of worship, with the body present, followed by either a burial or a cremation. Sometimes, there is a viewing of the body the day or evening before the ceremony. A memorial service, on the other hand, generally does not have the body present. Sometimes, however, the cremated remains of the deceased might be present.

Today, these traditional approaches might not be used, and even the names are changing. For example: some funeral homes use the terms “celebration of life” or “farewell ceremony.” Sometimes these ceremonies have a religious service, sometimes they do not. Some are more like an open house.

Tip

If you are making arrangements for a loved one’s final ceremony, don’t assume that the words mean certain things. Ask about the details and about what is included in the price, and what is not.

When planning a final ceremony, there will be many things to consider. For more information, see the following resources.



PDF Planning Your Own Funeral in Alberta
Centre for Public Legal Education Alberta
English
Although this resource is about planning your own funeral, you can use much of the information when planning a funeral for someone else as well.

Web The Funeral - A Celebration of Life
Canadian Funerals Online
English
This is a private source. Learn more here.

Who is responsible for making the arrangements?

Section 36(2) of the General Regulation to the Funeral Services Act (Alberta Regulation 226/98) says who has responsibility to decide what happens to the deceased’s remains. This includes making the decisions about the final ceremony.

According to this law, if the deceased wrote a Will that names a Personal Representative, then the Personal Representative has the responsibility (unless a court has ordered otherwise). If there is no one who meets that description, the responsibility falls to the following people (listed in the order they will be considered):

  • the spouse or Adult Interdependent Partner of the deceased, as long as he or she was living with the deceased at the time of death (see the note below about exceptions to this rule);
  • an adult child of the deceased;
  • a parent of the deceased;
  • a Guardian of the deceased under the Adult Guardianship and Trusteeship Act or, if the deceased is a minor, under the Child, Youth and Family Enhancement Act or the Family Law Act;
  • an adult grandchild of the deceased;
  • an adult brother or sister of the deceased;
  • an adult nephew or niece of the deceased;
  • an adult “next of kin” of the deceased as defined in the Wills and Succession Act;
  • the Public Trustee;
  • an adult person having some relationship with the deceased not based on blood ties;
  • the Minister of Human Services.
Be Aware

The General Regulation to the Funeral Services Act says the deceased and his or her spouse or Adult Interdependent Partner are still considered to have been living together if: 1) they were only apart because one of them had been living in a care facility; or 2) they were apart for reasons other than a breakdown in the relationship.

If a person with priority is either unable or unwilling to make the decisions, the right goes to the next available qualified person, in the order listed.

Sometimes loved ones are not sure if there is a Will. Or, there may be a Will somewhere but no one has access to it. If this is the case, funeral homes and other organizations involved with the final ceremony will usually turn to the family in the order described above. Sometimes, there may be some confusion about which family member to take instructions from. This generally gets sorted out soon, especially if the Will is located and the Personal Representative is identified.

Help with funeral costs

Sometimes, the estate of the deceased person does not have very much money, or any money at all. In such cases, planning a funeral can be very challenging. Depending on the circumstances, there may be financial help available. This is because the Alberta government has several options for providing basic funeral services through an agreement with funeral homes in Alberta.

If the deceased had been a client of the Assured Income for the Severely Handicapped (AISH) program at the time of death, he or she may be eligible for help under that program. For more information, see the following resource.

Web AISH Program Policy - Funeral
Government of Alberta
English

Similarly, if the deceased had been a client of the Income Support program at the time of death, he or she may be eligible for help under that program. For more information, see the following resource.

Web 2012-05-04 Funeral Benefits
Government of Alberta
English

Even if the deceased was not a client of AISH or Income Support at the time of death, there may still be help available if he or she had a low income. For more information, see the following resource.

Web Funeral Benefits
Government of Alberta
English

If the deceased was a veteran, there may be additional help available for the funeral. See the following resources for more information.

Web Funeral and Burial Assistance
Government of Canada
English


Web About the Last Post Fund
Last Post Fund
English

Web Le Fonds du Souvenir
Last Post Fund
French

If your loved one’s death was work-related, the Workers’ Compensation Board provides funds toward funeral expenses. For more information, see the following resource.

PDF Work-related fatalities (Benefits for dependants)
Workers' Compensation Board - Alberta
English

For more information about programs to help with funeral-related costs, see the following resource.

Web Funeral Costs
Saamis Memorial Funeral Chapel and Crematorium
English
This is a private source. Learn more here.
Must we use a funeral home?

You do not have to use a funeral home to arrange cremation, burial, or a ceremony to remember your loved one.

However, when dealing with a death there are many steps that must be taken to follow the law. Funeral home staff can guide you through these steps. You can decide if you want that extra help or not. The following steps are required.

  • You will need a Medical Certificate of Death. You can ask for it from the doctor who signed it.
  • You will also need to register the death and get a burial permit by contacting Vital Statistics. When you contact them, you may be referred to a specialist who deals with these matters.
  • If you want to cremate your loved one, other forms will be needed (see the “Cremation and burial options” section above).
  • If you want to bury your loved one, you will need to make arrangements with a registered cemetery.

Also, you will need to arrange for the transportation of your loved one’s body. If the deceased is to be transported in a private vehicle within Alberta, any type of vehicle may be used, and no permits are needed.

However, if your loved one had a communicable disease, Alberta’s Bodies of Deceased Persons Regulation does have requirements for handling the body. See the following resource for more information.

Web Public Health Act (and associated Regulations)
Government of Alberta
English
See “Bodies of Deceased Persons Regulation.”

For more information about dealing with a death on your own, see the following resources.



Web Post-Death Care and Home Funerals
Canadian Integrative Network for Death Education and Alternatives
English

For more information about all of these steps, see the Process tab of this Information Page.

If your spouse or partner has died

If you are dealing with the death of your spouse or partner, you may have some specific concerns that other loved ones will not have.

Staying in the family home if your name is not on the title or the lease

If your name was not on the title or lease of the home you shared with your spouse or partner, you may have a right to stay in that home for a period of time. However, your rights will be different depending on:

  • If you were married and your spouse owned the home;
  • If you were married and your spouse rented the home;
  • If you were Adult Interdependent Partners; or
  • If you live on-reserve (whether you were married or not).

If you were married and your spouse owned the home

Under the Wills and Succession Act, if a spouse is not listed on the title of the family home, he or she has an automatic right to stay in the home for 90 days after the death.

In addition, a surviving spouse in this situation has rights under Alberta’s Dower Act. The term “dower rights” refers to specific rights to the family home that are given to both spouses, even if only one spouse owns the property. Specifically, under the Dower Act, you have the following rights to the family home.

  • If only one spouse owns the family home (in other words, the land title is in the name of only one spouse), and that spouse dies, the other spouse has the right to live in the home for the rest of his or her life.
  • The surviving spouse may not sell the family home unless the deceased spouse left the house to him or her in a Will. If the deceased spouse left the house to the surviving spouse in a Will, it would belong to the surviving spouse (and he or she could sell it).
  • If more than one home was owned by the deceased spouse and were lived in by both of the spouses during the marriage, the surviving spouse would have to choose one house for which to claim the dower right (that is, the right to live in one house for the rest of his or her life).
Be Aware

Dower rights do not apply to a property that is co-owned by one of the spouses and another person(s). For example, if Alex and Taylor were married and lived in a house owned by Taylor and Taylor’s sister, then Alex would not have any dower rights to this house.

Claiming your dower rights can get complicated. You may need legal advice. See the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page.

For more information about dower rights, see the following resources.

Audio/Web Rights to your home under the Dower Act
Calgary Legal Guidance
English

Web Matrimonial Property
Centre for Public Legal Education Alberta
English
See “Dower Rights.”

Web Real Estate – General Information FAQs
Centre for Public Legal Education Alberta
English
See “What are dower rights?”

Web A Quick Review of Dower Rights in Alberta
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Dower
The Canadian Encyclopedia
English

 

If you were married and your spouse rented the home

Under the Wills and Succession Act, if a spouse is not listed on the lease of the family home, he or she has an automatic right to stay in the home for 90 days after the death.

 

If you were Adult Interdependent Partners

Under the Wills and Succession Act, if an Adult Interdependent Partner is not listed on the lease or title of the family home, he or she has an automatic right to stay in the home for 90 days after the death.

 

If you live on-reserve

If you were married or in a common-law relationship and lived on-reserve, different laws apply to you. These rules apply even if you are not a member of the First Nation nor a Status Indian.

For information about how the Indian Act and Family Homes on Reserves and Matrimonial Interests or Rights Act apply in your situation, see the “Aboriginal matters and on-reserve considerations: Estate administration” section below.

Government death benefits for surviving spouses or common-law partners

After your spouse or common-law partner has died, you may qualify for certain government benefits. These may include:

  • Canada Pension Plan death benefit, survivor’s pension, and children’s benefit
  • Allowance for the Survivor
  • Pensions and benefits from having lived outside of Canada
  • Veterans Affairs death benefit
  • Workers’ Compensation Board survivor benefits
  • Employment pension plan death benefits
  • Motor vehicle accident insurance benefits

For information about applying for any of these benefits, see the “Financial benefits for surviving loved ones” section below.

Tax issues

When you have lost a spouse or a partner, you may face a variety of issues related to taxes. For more information, see the following resources. These resources are from a private source. Learn more here.

Web Death & Taxes Part 1
Dedicated Financial Solutions
English

Web Death & Taxes Part 2
Dedicated Financial Solutions
English

Web Death & Taxes Part 3
Dedicated Financial Solutions
English

Web Preparing the Final Tax Return
Dedicated Financial Solutions
English

Web Preparing a Final Tax Return
Dedicated Financial Solutions
English

Workplace rights: Bereavement leave

In Alberta, there is no legal requirement for employers to give their employees bereavement leave. However, many employers have policies that allow bereavement leave. Check with your employer to see what they will allow.

For more information about the situation in Alberta, see the following resources.



Web Grieving in the Workplace: Coping With Loss
Government of Alberta
English

Web Helping Your Employees Cope With Loss
Government of Alberta
English

Immigration concerns

If your spouse or partner was sponsoring you to immigrate to Canada, you may have been given “conditional” permanent resident status. As of April 18, 2017, this rule no longer applies to sponsored immigrants to Canada.

  • Anyone who had been considered a “conditional permanent resident” is no longer subject to the conditions.
  • If you were being investigated for not following this rule after separating from your sponsor, the investigation will stop.

If you were separated from your spouse

If you and your spouse were separated when he or she died, you may have some additional matters to think about under the Matrimonial Property Act. For more information, see the “Death of a spouse” section of the Property Division for Married Spouses Information Page.

Be Aware

The Personal Representative is also required to notify you of any potential claim you may have under the Matrimonial Property Act.

Financial benefits for surviving loved ones

When a person person dies, loved ones may be entitled to specific death-related financial benefits. There are many kinds of death benefits. For example, some benefits come from:

  • government programs or laws (for example: the Canada Pension Plan);
  • the deceased’s employment;
  • the deceased’s insurance policies;
  • the deceased’s credit cards; and
  • the deceased’s memberships in certain groups.

These benefits may be paid to various people. For example:

  • some are for surviving spouses or partners;
  • some are for dependent children; and
  • some can go to others.

A few examples of the kinds of death benefits that may be available are listed below.

Government-related death benefits

Canada Pension Plan death benefit

The Canada Pension Plan death benefit is a one-time payment made to the deceased contributor’s estate. If there is no estate, the following people may be eligible to claim the benefit, in the order listed:

  • the person responsible for the funeral expenses;
  • the surviving spouse or common-law partner; or
  • the next of kin.

For more information, see the following resources.

Web Canada Pension Plan: Death Benefit
Government of Canada
English


Web Canada Pension Plan Survivor Benefits
Dedicated Financial Solutions
English
This is a private source. Learn more here.

Web Canada Pension Plan death and survivor benefits
Life Insurance Canada.com Inc.
English
This is a private source. Learn more here.

 

Canada Pension Plan survivor’s pension

If a person contributed to the Canada Pension Plan (CPP), his or her spouse or common-law partner may be eligible for the Canada Pension Plan survivor’s pension. This is a monthly pension paid to the surviving spouse or common-law partner of a deceased contributor.

Tip

If you were separated from your deceased spouse and he or she had no common-law partner, you may still qualify for this benefit.

For more information, see the following resources.

Web Canada Pension Plan: Survivor's Pension
Government of Canada
English


Web Understanding CPP survivor benefits
RetireHappy.ca
English
This is a private source. Learn more here.

Web Canada Pension Plan Survivor Benefits
Dedicated Financial Solutions
English
This is a private source. Learn more here.

Web Canada Pension Plan death and survivor benefits
Life Insurance Canada.com Inc.
English
This is a private source. Learn more here.

 

Canada Pension Plan children’s benefit

If a person contributed to the Canada Pension Plan (CPP), his or her children may be eligible for the Canada Pension Plan (CPP) children's benefit. These benefits provide monthly payments to the dependent children of deceased contributors. It is a monthly payment for a natural or adopted child, or a child who was in the care and custody of the contributor at the time of death.

To qualify, the child must be either:

  • under age 18; or
  • between the ages of 18 and 25 and a full-time student at a recognized school or university.

For more information, see the following resource.



 

Allowance for the Survivor

The Allowance for the Survivor is a benefit available to the surviving spouse or common-law partner, if he or she:

  • is 60-64 years old;
  • lives in Canada; and
  • has a low income.

For more information, see the following resource.

Web Allowance for the Survivor
Government of Canada
English

Web Allocation au survivant
Government of Canada
French

 

Pensions and benefits from having lived outside of Canada

If the deceased lived or worked in another country, his or her spouse or common-law partner may be eligible for pensions and benefits from the other country because of a social security agreement with Canada.

For more information, see the following resource.



 

Veterans Affairs death benefit

This death benefit is paid to a spouse or common-law partner and dependent children of a Canadian Armed Forces member if:

  • he or she died as a result of a service-related injury or disease; and
  • the death occurred within 30 days after the injury occurred or the disease was contracted.

For more information, see the following resource.

Web Death Benefit
Government of Canada
English

Web Indemnité de décès
Government of Canada
French

 

If the death was the result of a crime in Alberta

The Alberta Victims of Crime Act provides financial compensation to a victim injured as a result of a violent crime committed in Alberta, or due to his or her attempts to prevent the crime. The victim may be injured emotionally or physically.

If the death of your loved one was the result of a crime, the Victims of Crime Financial Benefits Program may be able to help:

  • funeral costs may be claimed by the person who paid the costs; and
  • if someone with a strong emotional attachment to the deceased witnessed the crime and has suffered psychological injuries as a result, they may be eligible for a financial benefit.
Be Aware

Deaths resulting from impaired driving or other criminal driving charges are not covered by the Financial Benefits Program.

For more information, see the following resources.

PDF Financial Benefits for Victims of Violent Crime
Government of Alberta
English

Web Rights as a victim of crime
Government of Alberta
English

Audio/Web Victims of Crime
Calgary Legal Guidance
English

Web Financial Benefits Program
Edmonton Police Service
English

Web Help for victims of crime
Government of Alberta
English
See “Apply for financial benefits.”

Also, if a loved one has suffered financial loss as a result of the crime, he or she may have the right to seek “restitution” from the offender. This means that the person who committed the crime would have to pay for the loss.

For more information, see the following resources.

PDF Restitution for Victims of Crime
Government of Alberta
English

Web Help for victims of crime
Government of Alberta
English
See “Apply for restitution.”

Employment-related death benefits

Workers’ Compensation Board of Alberta (WCB) survivor benefits

When a work-related death occurs, the worker’s spouse or Adult Interdependent Partner may be entitled to specific benefits from the Workers’ Compensation Board of Alberta (WCB).

Also, if the worker died while he or she was receiving benefits from the WCB, his or her spouse or Adult Interdependent Partner may qualify for further benefits if the death was related to the condition for which the worker was receiving benefits.

For more information, see the following resource.

Web Fatality and survivor benefits
Workers' Compensation Board - Alberta
English

 

Employment pension plan death benefits

Many workplaces offer their employees a registered pension plan as a part of an employment benefits package. If an employee dies while contributing to such a pension plan, there will be a death benefit. Sometimes there will be specific benefits or options available for surviving spouses or partners. Contact the pension plan administrator for information related to your spouse or partner’s plan.

Other kinds of death benefits

Motor vehicle accident insurance

If your spouse or partner died in motor vehicle accident, his or her insurance will provide some benefits (often called “no-fault benefits”) which can include:

  • funds for funeral expenses;
  • funds for grief counselling; and
  • a one-time “death benefit” amount. This amount varies depending on the age of your spouse or partner and his or her position in the household.

For these benefits, you must apply to the insurance company. For more information, see the following resources.

Web Fatal Accident Information Alberta
Alberta Funeral Service Association
English


Web How do car insurance claims and personal injury lawsuits work in Alberta?
Muscovitch Law Firm
English
This is a private source. Learn more here. See “Accident Benefits” and “Fatal Accidents Act.”

Video Alberta Fatal Accident Claims – Basic Information
Handel Law Firm (via YouTube)
English
This is a private source. Learn more here.

 

Other kinds of insurance

Other kinds of insurance may also have a death benefit. Be sure to check all of the deceased’s insurance policies to see if there are any benefits that are payable.
 

Credit cards

Some credit card companies offer death benefits. Be sure to check with all of the credit card companies with which the deceased held credit cards and apply for any death benefits that might be payable.
 

Memberships in organizations

Sometimes, organizations have death benefits that are associated with membership. For example: unions, professional organizations, and clubs. Check with the organizations the deceased belonged to to see if they offer a death benefit for members.

More information

For more information about the kinds of death benefits that may be available, see the following resource.

Web Dealing with Death
Government of Canada
English
Tip

If you are using a funeral home, the funeral home will also have current information.

Decisions need to be made: You need to know if there is a Will

When a person dies, there are many decisions to be made, and much work to be done. At first, there are the initial decisions about what is to be done with the body and any final ceremonies. This is followed by managing the deceased’s affairs, including settling the estate. All of these tasks are affected by whether or not there is a Will.

If there is a Will (and it is located)

When a person dies, the clearest legal situation exists if there is a Will and:

  • its contents are known (in other words, someone has a copy and there is no need to search for it); and
  • no one is claiming that the Will is not valid (also called “contesting” the Will).

If this is the case, the person appointed as Personal Representative can start handling all decisions. This includes decisions about the handling of the body, the final ceremony, and the management of the deceased’s affairs. Also, everyone knows that this person has the authority to do so. This is generally comforting for everyone involved because it is clear:

  • who should be making the decisions; and
  • that the deceased wanted this person to be the decision-maker.
Be Aware

If the deceased had an Agent, Attorney, Guardian, and/or Trustee making his or her decisions before the death, they must stop making decisions upon the death of the adult, unless they were also named as the Personal Representative. All decisions after the death are made by the Personal Representative.

If there is no Will, or the contents of the Will are not yet known

Sometimes the situation can be more confusing, and more complicated.

For example:

  • If there is clearly no Will;
  • If there is probably a Will, but no one has found it yet, or no one knows how to get it; or
  • If there is a Will available, but someone is saying that it is not valid, or is challenging the person appointed as the Personal Representative.

For tips on places to look for a Will, see the following resource.

Web Where do you look for someone's Will?
Estate Law Canada
English
This is a private source. Learn more here.

 

Initial decisions about the body and final ceremony

In such a situation, the law states who will be the initial decision-makers about what is to be done with the body and about any final ceremonies. Specifically, the responsibility falls to the following people (listed in the order they will be considered):

  • the spouse or Adult Interdependent Partner of the deceased, as long as he or she was living with the deceased at the time of death (see the note below about exceptions to this rule);
  • an adult child of the deceased;
  • a parent of the deceased;
  • a Guardian of the deceased under the Adult Guardianship and Trusteeship Act or, if the deceased is a minor, under the Child, Youth and Family Enhancement Act or the Family Law Act;
  • an adult grandchild of the deceased;
  • an adult brother or sister of the deceased;
  • an adult nephew or niece of the deceased;
  • an adult “next of kin” of the deceased as defined in the Wills and Succession Act;
  • the Public Trustee;
  • an adult person having some relationship with the deceased not based on blood ties;
  • the Minister of Human Services.
Be Aware

The law that governs this is the General Regulation to the Funeral Services Act. It says that the deceased and his or her spouse or Adult Interdependent Partner are still considered to have been living together if: they were only apart because one of them had been living in a care facility; or they were apart for reasons other than a breakdown in the relationship.

If a person with priority is either unable or unwilling to make the decisions, the right to the next available qualified person, in the order listed.

Everyone involved in the process of dealing with the death (such as medical staff, the police, and funeral homes) will usually turn to the family in the order described above. Sometimes, there may be some confusion about which family member to take instructions from. This can lead to disagreements between family members.

The requirement that instructions come from family members can also be very difficult for friends of the deceased, or partners who do not meet the definition of “spouse” or “Adult Interdependent Partner.” This is especially true if the deceased was on bad terms with his or her family.

Sometimes, especially if the death was unexpected, it is not immediately clear who the family of the deceased are. For example: when the deceased is found at home and he or she lived alone. In such cases, the police will try to find both a Will and family members. However, this search will not last more than a few days. In general, no one wants the “in between” time to last very long, as there are important decisions to be made. If the police cannot find family members or a Will, they will refer the matter to the Public Trustee.

For more information about who has the right to make decisions about someone who died without a Will, see the following resource.

Managing the deceased’s affairs

If there is no Will, there is no automatic order of priority when it comes to managing the deceased’s affairs.

Often people think that the law simply allows certain family members to manage the affairs of the deceased. For example: many people believe that if their spouse died, they could automatically handle the affairs of their deceased spouse. This is not true.

When a person dies without a Will, someone with an interest in the estate will have to apply to the Court to be named as the “Personal Representative.” If no one applies, the affairs of the deceased will be handled by the Public Trustee. For more information, see the “How the estate is managed if there is no Will” section below.

Wills: The basics

A Will is a legal document that says what will happen to your “estate” after you die. Your estate might be all of your property, or it might only be some of your property. For more information, see the “Estates: The basics” section below.

The person who writes the Will is called the “Testator.” In the Will, the Testator names a Personal Representative. This is the person who will be responsible for managing the deceased’s estate. The Personal Representative is responsible for things such as:

  • locating the assets;
  • paying debts and funeral costs; and
  • distributing the estate property to the beneficiaries.

In Alberta, there are 2 different kinds of Wills:

  1. a “formal” Will; or
  2. a “holograph” Will.

A formal Will is all typewritten or printed from a computer. This kind of Will must be signed by the Testator in the presence of 2 witnesses. Each of the witnesses then signs the Will in the presence of the Testator. There are also very specific rules about who can be a witness. For example: a beneficiary cannot be a witness.

A holograph Will is completely written in the Testator’s handwriting. Holograph Wills do not require any witnesses.

Be Aware

Wills are slightly different for Status Indians. For more information, see the “Aboriginal matters and on-reserve considerations” section below.

For more information about the requirements for a valid Will in Alberta, see the Planning for Death Information Page.

Estates: The basics

What is the “estate”?

The term “estate” refers to property owned by the deceased at the time of death and that will be passed to others through the Will. This process is called “passing through” the Will, or being “distributed through” the Will.

The property in the estate is first used to pay debts and taxes, and then it is distributed according to the instructions in the Will.

What is not in the estate?

There are several kinds of property that are not included in the estate:

  • property that the deceased held in “joint tenancy” with one or more other people (see the “What the words mean” section above for more information);
  • life insurance policies where the deceased has named a beneficiary; and
  • retirement savings plans (such as pension plans, RRSPs, TFSAs, and RRIFs) that have a named beneficiary.

Having a “named beneficiary” means that the deceased completed a separate “designation of beneficiary” form for that asset. On this form, the deceased stated who would receive a particular asset when he or she died. Now, the asset will go directly to that person: it does not pass through the deceased’s Will and does not form part of the deceased’s estate.

The role of the Personal Representative

In broad terms, the job of a Personal Representative (PR) is to manage the deceased’s affairs and carry out the instructions of the Will (if there is one). If there is no Will, the PR will distribute the estate as required by the Wills and Succession Act.

For issues related to the estate, the PR “steps into the shoes” of the deceased, and must deal with things that the person owned and all responsibilities that remain (such as paying debts and filing taxes).

As part of this, the PR must distribute all of the assets that are in the estate.

However, the PR also has the role of “wrapping up” the affairs of the deceased. This includes many tasks that are not directly related to the estate, such as:

  • The PR notifies all government agencies of the death, regardless of whether there are any assets involved. For example: cancelling a driver’s licence and a Social Insurance Card.
  • The PR helps make sure non-estate assets are properly passed on. For example: the PR may find a life insurance policy that names a beneficiary. Although the money does not form part of the estate, the PR will let the beneficiary know about that gift and can provide a Certificate of Death to the beneficiary.

For more information about the duties of a PR, see the “Being a Personal Representative” sections below, and the following resource.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English
How the estate is managed if there was a Will

Who is in charge

In the Will, the deceased named the person who will manage the estate. That person is called the Personal Representative. The Will may use the term “Executor.” That is what the position used to be called; it is now called a “Personal Representative.”

It is the job of the Personal Representative to carry out the directions in the Will. Specifically, the Personal Representative is responsible for:

  • making the arrangements for what happens to the body and for any final ceremony;
  • locating all of the deceased’s property;
  • paying for the costs of dealing with the body and any final ceremony;
  • paying all of the deceased’s debts and outstanding taxes;
  • applying for probate, if required; and
  • distributing the remaining money and property according to the instructions given in the Will.

The Personal Representative also settles all of the deceased’s affairs after death. Many tasks have nothing to do with the estate. For example: cancelling a driver’s licence.

For more detailed information about the job of the Personal Representative, see the “Being a Personal Representative” section below.

How it usually proceeds

In TV shows and movies, you often see a “reading of the Will.” In real life this almost never happens. Instead, the Personal Representative simply gets to work. The first tasks include:

  • dealing with the body;
  • arranging the final ceremony; and
  • notifying people and organizations about the death.

Property matters are often not even looked at for the first few weeks.

Many people think that settling an estate should happen quickly. This is not the case. Managing an estate takes time. In fact, even simple estates can take 1-2 years to fully deal with. Managing a more complicated estate can take years.

The Will may or may not be probated. Probate is a court process to confirm that:

  • a Will is authentic (for example: not fake or forged);
  • a Will is legally sound (for example: it was not signed by a person who lacked the capacity to sign a Will); and
  • the person named in the Will as the Personal Representative has the authority to administer the Testator’s estate according to the terms of the Will (for example: the person who was named as Personal Representative still has capacity, and there is no other legal reason to not allow that person to be the Personal Representative).

Not all Wills have to be probated. It depends on many things, such as:

  • the value and nature of assets;
  • the complexity of the estate;
  • the number of beneficiaries;
  • the types of beneficiaries (for example: beneficiaries may be capable adults, dependants, or corporations); and
  • the policies of the agencies or financial institutions that hold the particular assets.

For more information, see the “Probate” section below.

What beneficiaries can expect

If you are a beneficiary under the Will, the Personal Representative (PR) will contact you to:

  • let you know that you are a beneficiary;
  • tell you what you have been given; and
  • give you his or her contact information.

This “notice” is required by the Estate Administration Act. However, it will not necessarily occur immediately after the death. The PR has much work to do in the time after the death, so it may take a few weeks or months. This is normal.

Be Aware

Being a beneficiary does not mean that you will automatically be given a copy of the Will. If you want a copy of the Will, you can ask the Personal Representative and he or she might give you one. Or, if the Will has been probated, it becomes a matter of public record and you can request a copy from the Court.

As the Personal Representative works to settle the estate, he or she should keep in contact with you. Remember that the PR has many responsibilities, so be careful about how much contact you expect. Eventually, the PR should arrange to give you what you were left in the Will.

However, before giving gifts, the PR must pay all of the estate’s debts and taxes. Sometimes, there will not be enough money in the estate to pay all of the debts (even if none of the gifts are given). Or, there will not be enough money in the estate to pay all the bills and give all the gifts that were left in the Will. If that occurs, sections 27 and 28 of the Estate Administration Act state what a Personal Representative must do. These rules are called the “ranking of debts” and the “marshalling rules.” 

For more information about the responsibilities of the Personal Representative, see the “Being a Personal Representative” sections below, and the following resource.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English

For more information about things that may affect beneficiaries, see the following resources. Note that these resources are private sources. Learn more here.

Web How do I know if I'm a beneficiary?
Estate Law Canada
English

Web Can a beneficiary turn down an inheritance?
Estate Law Canada
English

Web Can a minor inherit money or property?
Estate Law Canada
English



Web What happens when a tenant-in-common dies?
Estate Law Canada
English



 

What family members can expect

Family members sometimes think that they should automatically get a copy of the Will. This is not true. If you want a copy of the Will, you can ask the Personal Representative and he or she might give you one. Or, if the Will has been probated, it becomes a matter of public record and you can request a copy from the Court.

For more information, see the following resources.

Web Am I entitled to see my deceased parent's will?
Estate Law Canada
English
This is a private source. Learn more here.

Web Who is entitled to see your Will?
Estate Law Canada
English
This is a private source. Learn more here.

Web Why can't I see the Will?
Estate Law Canada
English
This is a private source. Learn more here.


Web Frequently Asked Questions - Court of Queen's Bench
Government of Alberta
English
See “Where can I find a copy of a will or view an estate file?”

Similarly, people who are related to the Testator may think that the Testator must leave them something in the Will. This is also not true.

In general, Testators can leave their property to whomever they want. Just because a person is related to a Testator does not mean that person will get anything under the Testator’s Will.

However, married spouses may have rights to the family home under Alberta’s Dower Act. This right applies whether the surviving spouse’s name is on the title or not. This can get complicated. You may need legal advice. See the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page.

Also, a Testator must provide proper maintenance and support for certain dependent family members. If this is not done, the Alberta Wills and Succession Act allows the Court to change the Will. However, family members must apply for maintenance and support within 6 months from the date of a grant of probate or grant of administration.

The family members that have the right to apply to the Court for maintenance and support from the estate of a Testator are:

  • the spouse;
  • the Adult Interdependent Partner;
  • a child who was under the age of 18 years at the time of death (including a child who was not yet born at that time);
  • an adult child who cannot earn his or her own livelihood due to mental or physical disability;
  • an adult child who was under 22 at the time of the death and who cannot leave the care of his or her parents because he or she is a full-time student; and
  • a grandchild or great‑grandchild who is under 18 years of age, and to whom the Testator “stood in the place of a parent” at the time of death.

Because these specific family members can ask for maintenance and support from the estate, they need to be informed. The law requires the Personal Representative to notify these family members of:

  • the death of the Testator; and
  • what (if anything) the Testator has left them in the Will.

The PR must also notify any spouse with a potential claim under Alberta’s Matrimonial Property Act. In other words, if the Testator was separated or divorced from his or her spouse, and the matrimonial property issues had not been settled, the PR must provide notice to the former spouse.

Be Aware

Under the Wills and Succession Act, if a spouse or Adult Interdependent Partner is not listed on the lease or title of the family home, he or she has a right to stay in the home for 90 days after the death.

Common concerns and problems with Wills

Validity of the Will

Sometimes, there will be a question about whether a Will is “valid.” In other words, someone may believe that there is a legal reason why the Will should not be followed. Legal reasons that might make a Will invalid include:

  • it is not the last Will the deceased wrote;
  • the deceased did not have capacity when he or she wrote the Will;
  • the deceased was forced to write the Will; and/or
  • the Will was not written by the deceased (it is a forgery).

If you have a concern about the validity of a Will, you may be able to challenge the Will in court. To challenge a Will, you will have to use the documents and procedures described in the Surrogate Rules (under “Contentious Matters”). This is a very complex area of law. You may wish to consult a lawyer. For more information, see the Working with a Lawyer Information Page.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information, see the following resources.

Web Is My Will Valid In Alberta?
Kahane Law Office
English
This is a private source. Learn more here.

Web Questions About Wills
Alberta Funeral Service Association
English
See “What is the basis for a will to be contested?”

Presentation Will challenges – 5 reasons why a last will and testament may not be valid
Hull & Hull LLP (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.

Web Do You Know How To Prove the Validity of a Will?
Huffington Post Canada
English
This resource is from outside Alberta. Learn more here.

Web Grandma's will is pretty unpopular. Was she too old to make a will?
Estate Law Canada
English
This is a private source. Learn more here.

Web How do I know if someone is contesting the will?
Estate Law Canada
English
This is a private source. Learn more here.

Web "I'm contesting the will" - real threat or just bluster?
Estate Law Canada
English
This is a private source. Learn more here.

Web Can we settle an estate dispute without suing?
Estate Law Canada
English
This is a private source. Learn more here.

 

Problems with who was named as the Personal Representative

Sometimes, there is a problem with who was named as the Personal Representative. For example, the person named may have lost capacity, or is unwilling to take the job.

In many cases, the Testator may have named a second person, and sometimes even a third person, as “alternate” Personal Representatives. If the first person named cannot or will not take the job, the next person named gets a chance.

If all of the people named as possible Personal Representatives cannot or will not take the job, then another interested person can apply to the Court for the job. If no one applies, the job would go to the Public Trustee.

Issues with a former spouse or former Adult Interdependent Partner

Sometimes people divorce their spouses, or separate from their Adult Interdependent Partners, and do not change their Wills. As a result, a person might die with a Will that leaves a bequest to a former spouse or former Adult Interdependent Partner.

A divorce or separation does not automatically revoke a Will. In other words, even if the Testator has left a bequest to a former spouse or former Adult Interdependent Partner, the Will is still valid.

However, if a former spouse or former Adult Interdependent Partner is left a gift in a Will, the Wills and Succession Act says that that gift is generally considered to have been withdrawn (or “revoked”) by the Testator. This is the case unless it can be shown to the Court that the Testator really meant to leave that gift to his or her former spouse/partner despite their separation. If this can be shown, it is called “finding a contrary intention.” In other words, the only way that a former spouse or partner can get the gift is to prove to the Court that the gift really was intended despite the separation.

Similarly, if a former spouse or former Adult Interdependent Partner is named as the Personal Representative, the Court will first assume that the Testator meant to revoke that nomination. However, the Court may find a contrary intention in this case too.

Gifts that “fail”

Sometimes, a gift will “fail.” In other words, the gift cannot be passed on the way that the Testator intended. For example:

  • the Testator left a gift to a person who was a witness to the Will; or
  • a beneficiary refuses to accept a gift.

If this happens, the failed gift goes into the “residue,” if there is one. The residue is the portion of the estate that is left over once all of the gifts have been given. If a Will is well-written, it will have a clause that says what should happen to the residue. This is called the “residuary clause.”

However, sometimes the Will does not have a residuary clause. In such a case, the failed gift will be treated like an intestacy. In other words, the Will does not cover that portion of the estate and it will be treated as if there were no Will. For more information about what happens in the case of intestacy, see the “How the estate is managed if there is no Will” section below.

Gifts to minors or adults without capacity

Sometimes a Testator leaves a gift to a minor. A minor cannot take care of money or property on his or her own. As a result, a “trustee” is needed. Often, the Will names a trustee. If the Will does not name a trustee, it is possible to ask the Court to appoint a trustee.

Or, a Testator may leave a gift to an adult who does not have capacity. If the adult already has a Trustee appointed under the Adult Guardianship and Trusteeship Act, that Trustee will be able to deal with the gift on behalf of the beneficiary. If the adult does not have a Trustee, one can be appointed by the Court.

For more information, see the following resources.

Web Can a minor inherit money or property?
Estate Law Canada
English
This is a private source. Learn more here.

Web At what age should children inherit money?
Estate Law Canada
English
This is a private source. Learn more here.

Web Should Your Children be Life Insurance Beneficiaries?
Kanetix Ltd.
English
This is a private source. Learn more here.

Web The Importance of Trusts in Wills for Minor Beneficiaries
Kahane Law Office
English
This is a private source. Learn more here.

Web Young Persons and the Law
Centre for Public Legal Education Alberta
English
See “Other situations.”

Web Assets of a minor
Government of Alberta
English

 

There isn’t enough to pay all the debts and give all of the gifts

One of the core tasks of the Personal Representative is to pay all of the debts, taxes, and other obligations of the estate. However, sometimes there will not be enough money in the estate to pay all of the debts (even if none of the gifts are given). Or, there will not be enough money in the estate to pay all the bills and give all the gifts that were left in the Will.

If that occurs, sections 27 and 28 of the Estate Administration Act state what a Personal Representative must do. These rules are called the “ranking of debts” and the “marshalling rules.” It is important that the Personal Representative understands these rules.

This is a very complex area of law. You may wish to consult a lawyer. For more information, see the Working with a Lawyer Information Page.

A dependant has not been properly provided for in the Will

In general, Testators can leave their property to whomever they want. Just because a person is related to a Testator does not mean that person will get anything under the Testator’s Will.

However, a Testator must provide proper maintenance and support for certain dependent family members. If this is not done, the Alberta Wills and Succession Act allows the Court to change the Will. However, family members must apply for maintenance and support within 6 months from the date of a grant of probate or a grant of administration.

The family members that have the right to apply to the Court for maintenance and support from the estate of a Testator are:

  • the spouse;
  • the Adult Interdependent Partner;
  • a child who was under the age of 18 years at the time of death (including a child who was not yet born at that time);
  • an adult child who cannot earn his or her own livelihood due to mental or physical disability;
  • an adult child who was under 22 at the time of the death and who cannot leave the care of his or her parents because he or she is a full-time student; and
  • a grandchild or great‑grandchild who is under 18 years of age, and to whom the Testator “stood in the place of a parent” at the time of death.

For more information about a dependent family member’s right to apply for support and maintenance, see the following resources.

Web FAQs: Wills and Estates
Kirk Montoute LLP
English
This is a private source. Learn more here. See “Am I required to leave part of my Estate to my spouse or children?”


PDF Legislation Alert: The New Wills and Succession Act
Field Law
English
This is a private source. Learn more here. See #6.

Web The New Wills and Succession Act: How Does it Affect You?
Vogel LLP
English
This is a private source. Learn more here. See “Dependants Relief Claims.”

PDF Adult Interdependent Relationships and Estates
Vogel LLP
English
This is a private source and can be a challenge to read. Learn more here.

Web The Adult Interdependent Relationships Act
Centre for Public Legal Education Alberta
English
See “Death.”

PDF For Mercy’s Sake: Principles of family maintenance and support in the 20 years since Tataryn
de Villars Jones LLP
English
This resource can be a challenge to read. Learn more here.


PDF The New Wills and Succession Act
Government of Alberta
English
This resource can be a challenge to read. Learn more here. See p. 32-40.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Are Child and Spousal Support Obligations Binding upon the Payor’s Estate? (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

For more information about applying for support and maintenance from the deceased’s estate, see the Process tab of this Information Page.

More information

When settling estates, there are many more concerns and problems that can arise. For more information, see the following resources.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English
See p. 17-18.

Web Top Five Mistakes Made by Executors
Estate Law Canada
English
This is a private source. Learn more here.

Web Estate Challenges Executors Face in Alberta
Kahane Law Office
English
This is a private source. Learn more here.
Probate

What is it?

Probate is a court process to confirm that:

  • a Will is authentic (for example: not fake or forged);
  • a Will is legally sound (for example: it was not signed by a person who lacked the capacity to sign a Will); and
  • the person named in the Will as the Personal Representative has the authority to administer the Testator’s estate according to the terms of the Will (for example: the person who was named as Personal Representative still has capacity, and there is no other legal reason to not allow that person to be the Personal Representative).

At the end of the process, the Court gives the Personal Representative documents called a “Grant of Probate,” which prove that he or she has the authority to deal with the estate.

Be Aware

If any of the property passing through the Will is outside of Alberta, you may have to get probate in that other jurisdiction. For more information, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

What is involved?

To get probate, special forms must be submitted to the Alberta Court of Queen’s Bench Surrogate office. For more information about the application process, see the Process tab of this Information Page.

Be Aware

Once the Will has been probated, it becomes a matter of public record and anyone can request a copy of the Will from the Court.

How long does it take?

Probate can take several weeks to several months. It depends on many different factors, such as:

  • if there are complications (such as missing documents or if the witnesses to the Will can’t be found);
  • the number of cases the Court is dealing with; and
  • whether there are any disputes with other family members or beneficiaries.

A lawyer may be able to explain how to speed up the process. The Personal Representative can help speed up the process by providing accurate and complete information and filing the documents promptly and completely.

For more information, see the following resource.

Web 10 things an executor can do while waiting for probate
Estate Law Canada
English
This is a private source. Learn more here.

When is probate required?

Whether or not a Will has to be probated depends on many things, such as:

  • the value and nature of assets;
  • the complexity of the estate;
  • the number of beneficiaries;
  • the types of beneficiaries (for example: beneficiaries may be capable adults, dependants, or corporations); and
  • the policies of the agencies or financial institutions that hold the particular assets.

The kinds of assets

Certain kinds of assets require probate. If these kinds of assets are in the estate, it will be necessary to apply for a grant of probate. For example, if the estate includes land held only in the name of the Testator, probate will be required. The Land Titles Office will not transfer the land to anyone else without a grant of probate.

Also, if the estate includes securities (such as stocks and bonds), or “large” bank accounts, the Personal Representative may have to apply for probate in order to transfer them. For example: some banks require probate if the assets they hold are over $250,000. Other banks require probate if the assets they hold are over $50,000. The Personal Representative must check with each bank or transfer agent involved to see if they require probate.

Other assets don’t require probate, as they never become part of the estate. For example, if the Testator owned land or a house in joint tenancy with another person, the other joint tenant would only have to file an application in the Land Titles Office along with the Certificate of Death to become the sole owner. Similarly, if the Testator owned a bank account or vehicle in joint tenancy, the Certificate of Death is usually enough to transfer these to the surviving joint owner.

Be Aware

The situation is much different for property that was owned in a tenancy in common. For more information, see the following resource.

Web What happens when a tenant-in-common dies?
Estate Law Canada
English
This is a private source. Learn more here.

Also, for certain kinds of assets, the Testator may have named a beneficiary. For example: RRSPs, RRIFs, pension plans, and insurance policies. If a beneficiary was named, these assets do not form part of the estate. Instead, the money would be paid directly to the named beneficiary. However, if the deceased named his or her “estate” as the beneficiary for these kinds of assets, then the money does go to the estate and probate may be required.

The complexity of the estate

Some estates are quite complex. For example, a Personal Representative may have to deal with very large amounts of money, cross-border issues, or be involved in lawsuits on behalf of the estate. In such cases, it is often easier to have a grant of probate because the Personal Representative can easily prove that he or she is the correct person to be handling the matter.

When can probate be useful, even if it is not required?

Even when it is not required, probate can be useful. Examples of such situations are explained below.

When there is uncertainty or conflict

As noted above, the purpose of probate is to confirm that a Will is the last valid Will of the Testator and that the Personal Representative has the authority to settle the Testator’s estate.

To do this, the Court looks at all kinds of information, including:

  • whether the Will was made with all of the formal requirements (such as the signature, date, and witnesses);
  • details about spouses and Adult Interdependent Partners to whom the Testator may have legal obligations;
  • details about children to whom the Testator may have legal obligations;
  • information about the assets in the estate and their value;
  • information about the beneficiaries;
  • all debts and liabilities;
  • business agreements; and
  • any lawsuits the Testator was involved in.

Also, the person applying for probate must notify beneficiaries and family members about the application, and swear that the Will is the last valid Will of the deceased. This allows people with an interest in the Will to bring up any concerns they may have about the Will or its contents. For example:

  • If someone thinks that the deceased lost capacity before signing the Will, they could bring this issue to the Court and ask that the Court confirm a previous Will instead.
  • If a dependent family member thinks that he or she has not adequately been provided for in the Will, he or she could apply to the Court for maintenance and support.
  • If someone thinks that there is a legal reason why the person named as the Personal Representative should not get the job, they can let the Court know.

In other words, the probate process provides an opportunity to settle any potential conflicts and disagreements, before the work of managing the estate really begins. This will make the job of the Personal Representative much easier later on.

Family Violence

Having the Will probated can also be helpful in situations of suspected or potential financial abuse. This is because not having probate can lead to more secrecy.

When there may be claims against the estate: Setting a time limit

Sometimes the law allows certain claims against an estate. There are often time limits for bringing these claims to court. This is known as the “limitation period.” In many cases, the limitation period begins on the date of the grant of probate.

For example, under Alberta’s Matrimonial Property Act (MPA), an application by a surviving spouse for a matrimonial property order may not be started more than 6 months after the date probate is granted.

In such a case, if a Personal Representative gets probate, the 6-month timeline begins. After 6 months, the Personal Representative can move ahead with settling the estate knowing that a claim under the MPA is no longer possible. Without the grant of probate, the time period for such claims may never expire.

How much does it cost?

In Alberta, there is a range of court fees charged for probate: the larger the estate, the higher the fee. However, the highest fees (for estates over $250,000) are still less than $600. For a current list of fees, see the following resources.

Web Court fees
Government of Alberta
English
See “Surrogate matters.”

Web Waiving a filing fee
Government of Alberta
English

PDF Court Fees & Waivers in Alberta
Centre for Public Legal Education Alberta
English

More information

For more general information about probate, see the following resources.

Web The "Avoiding Probate at all Costs" Issue
Estate Law Canada
English
This is a private source. Learn more here.

Video Does an Estate Always Need to be Probated
Kahane Law Office (via YouTube)
English
This is a private source. Learn more here.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English

Audio/Web The Executor and Probate of a Will
Calgary Legal Guidance
English

Web Probate
Alberta Funeral Service Association
English

Web Frequently Asked Questions - Court of Queen's Bench
Government of Alberta
English

Web Is A Grant Of Probate Necessary?
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Estate Planning
Paul J. Dunn
English
This is a private source. Learn more here. See “Dying with a Will – Application for Probate.”

PDF Rectification and Validation of Wills and Codicils
de Villars Jones LLP
English
This resource can be a challenge to read. Learn more here.
If there is a Will but there is no probate: New rules since 2015

Under Alberta’s Estate Administration Act, Personal Representatives are given various duties and responsibilities. Some of these duties only apply when there is probate, but many apply whether or not there is probate.

Be Aware

The rules that apply to situations where there is no probate changed significantly on June 1, 2015, when the new Estate Administration Act was brought into force. Some resources you may see still refer to old law, which was called the Administration of Estates Act. When doing your research, be sure to use current information.

For more information about the new duties and responsibilities of all Personal Representatives, see the following resources.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English

Web Estate Administration Act : Significant Changes in the Law
Centre for Public Legal Education Alberta
English

Web Administering estates of deceased people
Government of Alberta
English

Web Alberta’s new Estate Administration Act
Miller Thomson LLP
English
This is a private source. Learn more here.

The following resource is not available online. The link below will give you a preview of the resource, and you can find the full text at libraries across Alberta. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book New Estate Administration Act
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full book from a library: Alberta Law Libraries / The Alberta Library.

For more general information and tips about being a Personal Representative, see the “Being a Personal Representative” sections below, and the following resource.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English
Challenging a Will

In certain circumstances, it is possible to “challenge” (or “contest”) a Will. This means that you are raising a formal objection about the Will with the Alberta Court of Queen’s Bench.

There are various reasons why Wills get challenged.

There may be a question about whether a Will is “valid.” In other words, someone may believe that there is a legal reason why the Will should not be followed. Legal reasons that might make a Will invalid include:

  • it is not the last Will the deceased wrote;
  • the deceased did not have capacity when he or she wrote the Will;
  • the deceased was forced to write the Will; and/or
  • the Will was not written by the deceased (it is a forgery).

There may be a concern about only a particular part of the Will. For example:

  • there is a problem with who was named as the Personal Representative, and you have a legal concern about why that person should not get the job; or
  • a dependant has not been properly provided for in the Will.

If you have a concern about the validity of a Will, or a part of it, you may be able to challenge the Will in court.

For more information, see the following resources.

Web "I'm contesting the will" - real threat or just bluster?
Estate Law Canada
English
This is a private source. Learn more here.

Web Can we settle an estate dispute without suing?
Estate Law Canada
English
This is a private source. Learn more here.

Web Questions About Wills
Alberta Funeral Service Association
English
See “What is the basis for a will to be contested?”

Web Contesting or challenging a Will
Legal Line
English


Video Hull & Hull TV: Episode Twenty-Six
Hull & Hull LLP (via YouTube)
English
This is a private source. Learn more here.

Web Contesting a Will: Grounds & Onus of Proof
CanLII
English
This resource can be a challenge to read. Learn more here.

This is a very complex area of law. You may wish to consult a lawyer. For more information, see the Working with a Lawyer Information Page.

How the estate is managed if there is no Will

Often people think that the law simply allows certain family members to manage the affairs of the deceased. For example: many people believe that if their spouse died, they could automatically handle the affairs of their deceased spouse. This is not true. 

When there is no Will (also called an “intestacy”), the deceased’s affairs are handled according to the rules of the Alberta Wills and Succession Act. For more information about who has “priority” to apply to administer an estate, see the following resource.

Web Consequences of Intestacy in Alberta
Kirk Montoute LLP
English
This is a private source. Learn more here.

Who is in charge?

When there is an intestacy, someone with an interest in the estate will have to apply for a “grant of administration” from the Court to be given the job of managing the deceased’s estate. This job is called being a Personal Representative. If no one applies for a grant of administration, the job of managing the deceased’s affairs will go to the Public Trustee.

For more general information about getting a grant of administration, see the following resources. Note that these resources are from private sources. Learn more here.

 
Web Administering Estates
Galbraith Law
English
See “What are Letters of administration?”

PDF FAQ for Personal Representatives
Turning Point Law
English
See p. 4.

For more information about applying for a grant of administration, see the Process tab of this Information Page.

For more information about the Public Trustee administering the estate, see the following resources.

Web Deceased persons’ estates | How it works
Government of Alberta
English

How is the estate divided?

If there is an intestacy, the estate will be divided as required by the Wills and Succession Act. It does not matter what the deceased may have said to anyone. 

Who gets what will depend on many factors, including:

  • whether the deceased had a spouse;
  • whether the deceased had an Adult Interdependent Partner;
  • whether the deceased had children; and
  • if none of the above, which other relatives the deceased had, and whether they can be found.

For more information about how estates are divided when there is an intestacy, see the following resources.

PDF Making a Will
Centre for Public Legal Education Alberta
English
See p. 7-9.

Web Death without a will
Centre for Public Legal Education Alberta
English

Audio/Web Dying without a Will
Calgary Legal Guidance
English

Web Wills, Personal Directives and Power of Attorney
Student Legal Services of Edmonton
English
See “Dying Without a Will.”

Web What happens if I die without a will?
Government of Alberta
English

PDF What Happens if You Die Without a Will
Ron Graham & Associates Ltd.
English
This is a private source. Learn more here.
Being a Personal Representative: What does the job involve?

What is a “Personal Representative”?

A Personal Representative is a person named to manage the affairs of a person who has died. In other words, a Personal Representative takes care of the things that need to be done after a person has died.

A person can become a Personal Representative in one of two ways:

  • The person can be named as a Personal Representative in the Will of a deceased person (and that may or may not be confirmed by a “grant of probate”). The old word for this was “Executor.” The correct legal term for this is now “Personal Representative.” However, you may still see the old word used in some legal materials.
  • A court appoints the person as a Personal Representative in a “grant of administration.” The old word for this was “Administrator.” The correct legal term for this is now “Personal Representative.” However, you may still see the old word used in some legal materials.
Be Aware

The term “Executor” is still used to refer to people who administer the estate of a deceased Status Indian.

General duties and tasks for all Personal Representatives

The Estate Administration Act governs the work of all Personal Representatives, whether they were named in a Will or appointed by a court. All Personal Representatives need to know what the Estate Administration Act says about their role.

Be Aware

This law recently changed. Until June 1, 2015, many similar rules only applied when the Will was probated. That is no longer the case. Some resources you may see still refer to old law, which was called the Administration of Estates Act. When doing your research, be sure to use current information.

For more information, see the following resource. There is also much more information in the “Being a Personal Representative: More information” section below.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English

General duties of all Personal Representatives 

Section 5 of the Estate Administration Act states that Personal Representatives (PRs) have 4 general duties that apply to everything they do.

  1. Perform the job with honesty, and in good faith.
  2. Perform the job with the care, effort, and skill that a reasonable and cautious person (also called a “prudent” person) would use when taking care of someone else’s money. (Professional PRs are held to a higher, professional standard.)
  3. Follow the intentions of the Testator and the instructions in the Will (if there was a Will).
  4. Distribute the estate in a timely manner.

If a Personal Representative does not properly perform these duties, the Court may:

  • order the Personal Representative to perform the duty;
  • impose conditions on the Personal Representative;
  • remove the Personal Representative;
  • revoke a grant of probate or a grant of administration; or
  • make any other order that the Court considers appropriate.

For more information about removing a Personal Representative, see the following resources.

Web How to remove an executor
Advisor Group
English
This is a private source. Learn more here.

Web Removing and Replacing Executors and Trustees
R. Trevor Todd
English
This resource is from a private source outside of Alberta, and can be a challenge to read. Learn more here.

Web When can you remove an Executor or Trustee?
Lawson Lundell LLP
English
This is a private source. Learn more here.

PDF FAQ for Personal Representatives
Turning Point Law
English
This is a private source. Learn more here. See p. 5.

PDF The removal, replacement and appointment of Trustees and Executors
Fasken Martineau DuMoulin LLP
English
This resource is from a private source outside of Alberta, and can be a challenge to read. Learn more here.

Core tasks of all Personal Representatives

When a person dies, there are many financial and personal issues to deal with. The law has summarized them into 4 core tasks.

  1. Identify assets and debts of the estate.
  2. Pay the debts and obligations of the estate.
  3. Administer and manage the estate.
  4. Distribute and account for the administration of the estate.

If a Personal Representative does not properly carry out these tasks, the Court may:

  • order the Personal Representative to carry out the task;
  • impose conditions on the Personal Representative;
  • remove the Personal Representative;
  • revoke a grant of probate or a grant of administration; or
  • make any other order that the Court considers appropriate.
     

Dealing with the deceased’s remains and planning a final ceremony

The Personal Representative is also given the initial responsibility of dealing with the deceased’s remains (cremation or burial) and arranging a final ceremony (such as a funeral or memorial service). However, if the PR does not or cannot do this, the responsibility falls to other people. For more information, see the “Cremation and burial options” and “Funerals, memorial services, and other ceremonies” sections above.

Being a Personal Representative: Do you have to take the job?

Being a Personal Representative is a big responsibility. There are many rules and tasks, and sometimes it can last for years. There can be legal consequences if the Personal Representative does not fully understand the work they must do, and what they must not do. It can be even more challenging if there are problems or disagreements in the family.

Before deciding to be a Personal Representative, you should consider if you can do the job, or even want to do the job. Just because someone asks you to be their Personal Representative does not mean that you have to say yes.

You may have been asked before the death of your loved one if you would be your loved one’s Personal Representative. You may have even agreed at that time. But now you are no longer so sure that you want the job. You are allowed to change your mind.

Or, you may have been surprised by the job. Perhaps the Testator never told you that you were named Personal Representative, and you only found out after the Testator died. You do not have to accept the job.

The steps you need to take depend on:

  • if the Testator is still alive; or
  • if the Testator has died, whether or not you have “started” the job.

If the Testator is still alive

If the Testator is still alive and still has capacity, you should let him or her know that you no longer want the job. The Will can still be changed.

If the Testator is still alive but no longer has capacity, you can inform whoever is currently handling the Testator’s affairs. This must be done in writing. Because the Testator has lost capacity, the Will can no longer be changed (unless the Testator regains capacity).

Usually, Testators name another person to take the job in case their first choice cannot take the job, or will not take the job (this is called “naming an alternate”).

  • If an alternate was named and you do not take the job, the job will go to the alternate.
  • If no alternate was named, after the Testator dies someone who wants the job will have to apply to the Court for a grant of administration to be appointed as the Personal Representative.

If the Testator has died

If the Testator has died, you can still resign, or refuse to take on the job. Exactly what you must do depends on whether or not you have started the job.

If you have not started the job

If you have not yet started the job, you can quit (or “renounce”) the job by providing written notice to the beneficiaries. Sometimes you will also have to provide written notice to the Court. Often, especially if probate is applied for, providing notice will mean using a specific form set out in the Surrogate Rules. For more information about this, see the Process tab of this Information Page.

To renounce in this way, you must be certain that you have done nothing related to the tasks of a Personal Representative. Sometimes, even making just one little decision, or one phone call, can be viewed by the Court as “starting” the job.

However, just because you renounce does not necessarily mean that there will be no one to take the job. Usually, Testators name another person to take the job in case their first choice cannot take the job, or will not take the job (this is called “naming an alternate”).

  • If an alternate was named and you do not take the job, the job will go to the alternate.
  • If no alternate was named, after the Testator dies someone who wants the job will have to apply to the Court for a grant of administration to be appointed as the Personal Representative.

If you have started the job

It is more difficult to quit if you have already started work on the estate. You must apply to the Court of Queen’s Bench for permission to quit (also called “renouncing”). The judge does not have to grant your request. The Court may not allow you to simply walk away. If the judge does grant your request, you must give the new Personal Representative the records you have kept from the time you were the Personal Representative.

For more information about how to do this, see the Process tab of this Information Page and the following resources. Note that these resources are from a private source. Learn more here.

Web How do I change executors?
Estate Law Canada
English


Web What goes into an executor's accounting?
Estate Law Canada
English

Before deciding: Make sure you understand the job

Being a Personal Representative is a serious job, with many rules and tasks. Problems can arise, and there can be legal consequences if the Personal Representative does not fully understand the work they must do, and what they must not do.

For more information about what to consider when deciding whether to be a Personal Representative, see the following resources. Note that these resources are from private sources. Learn more here.







PDF FAQ for Personal Representatives
Turning Point Law
English
See p. 5.


Presentation Executor's Duties & Probate
Executor's Duties & Probate
English

Web Can I hire a co-executor?
Estate Law Canada
English

PDF Executor's Handbook
Dynamic Funds
English
See Section 2.

Web Duties Of An Executor
Kirk Montoute LLP
English
Being a Personal Representative: Notice requirements

Providing “notice” is formally telling people about the death and what they were given in the Will (if anything). Exactly who gets notified and what information they are given depends on whether or not a grant of probate or a grant of administration is being applied for.

If the PR is not applying for a grant of probate or grant of administration

If there is no grant being applied for, the PR must give notice to:

  • all beneficiaries;
  • a spouse with a potential claim under the Matrimonial Property Act;
  • family members with potential claims for maintenance and support (for information about who can make such a claim, see the “How the estate is managed if there was a Will” section above); and
  • the Public Trustee, if a minor, a represented adult, or a missing person (as defined in the Public Trustee Act) is interested in the estate.

This notice can be informal. In other words, formal “service” is not necessary. The notice must include:

  • the identity of the deceased;
  • the name and contact information of the Personal Representative;
  • if the person has been left a gift in the Will, a description of that gift; and
  • a statement that all gifts will only be distributed after payment of the deceased person’s debts and other claims against the estate.

For more information about providing notice, including forms that can be used to provide this notice, see the Process tab of this Information Page.

If the applicant is applying for a grant of probate or a grant of administration

When a grant is being applied for, the notice requirements are more complicated. Specifically, the applicant will have to give notice to the following family members of the deceased:

  • any adult child who cannot earn a living because of a physical disability;
  • the Attorney or Trustee of any adult child who cannot earn a living because of a mental disability;
  • an adult child who was under 22 at the time of the death and who cannot leave the care of his or her parents because he or she is a full-time student;
  • the Public Trustee, if a child was a minor at the time of the death,
  • the Public Trustee, if the deceased “stood in the place of a parent” to a grandchild or great-grandchild who was a minor at the time of the death;
  • the spouse, if the applicant is applying for a grant of administration and the spouse is not the sole beneficiary under the Wills and Succession Act; and
  • the Adult Interdependent Partner (AIP), if the applicant is applying for a grant of administration and if the AIP is not the sole beneficiary under the Wills and Succession Act.

The applicant must also provide notice to the following people, if applicable:

  • an Attorney under a Power of Attorney who is acting for a person who is interested in the estate;
  • the Trustee of a Represented Adult who is interested in the estate (a “Represented Adult” is an adult who is the subject of a Trusteeship Order);
  • the Public Trustee, if a minor, a represented adult, or a missing person (as defined in the Public Trustee Act) is interested in the estate.

The notice must include:

  • a copy of the grant application;
  • for family members, a notice about the rights of family under part 5 of the Wills and Succession Act (the part that allows family members to apply for maintenance and support); and
  • for the spouse, a notice about the rights of a spouse to make a claim under the Matrimonial Property Act.

All of these notices must be formally served. For more information about service, see the Understanding the Court System & Processes Information Page.

For forms that can be used to provide this notice, see the Process tab of this Information Page.

More information about providing notice

For more information about providing notice, see the following resources.

Web Estate Administration Act : Significant Changes in the Law
Centre for Public Legal Education Alberta
English
See “Notices.”

Web AB Probate Kit update
Estate Law Canada
English
This is a private source. Learn more here.

Web Top 10 Personal Representative Questions answered in the new Estate Administration Act
Macphail Harding
English
This is a private source. Learn more here. See “When is a Personal Representative required to give notice to beneficiaries of an estate?”

Web Executors beware: new duties apply to you
Patriot Law Group
English
This is a private source. Learn more here.


The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Applications for a Grant: Priority to Apply and Notices Provided (article included in "New Estate Administration Act")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law LibrariesThe Alberta Library.
Being a Personal Representative: More information

Being a Personal Representative is a big job, and there are many tasks. In addition, the law has many rules about what you can and cannot do.

You can get help from professionals such as accountants and lawyers. Often, this can be very helpful and can save you trouble later on. For information, see the Working with a Lawyer Information Page and the Community Legal Resources Information Page.

Be Aware

You can also ask for the advice of the Court. For information about how to do that, see the Process tab of this Information Page.

For more information about being a Personal Representative, including:

  • where to start;
  • who to notify;
  • dealing with different kinds of assets;
  • who has what rights;
  • common problems you might encounter; and
  • checklists

see the following resources.

Remember

The law in Alberta about being a Personal Representative recently changed. If you have been a Personal Representative (or Executor) before, be sure you review the “If there is a Will but there is no probate: New rules since 2015” section above.

General information for Alberta Personal Representatives

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English



Web Executor (Personal Representative) Duties & Responsibilities
J.E. Fletcher Professional Corporation
English
This is a private source. Learn more here.

PDF Checklist for Executors
Verhaeghe Law Office
English
This is a private source. Learn more here.

Web Executors
Alberta Funeral Service Association
English

Web What is an executor's year?
Estate Law Canada
English
This is a private source. Learn more here.


PDF A Caution to Personal Representatives of an Estate
Field Law
English
This is a private source. Learn more here.

Web Duties Of An Executor
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Can I hire a co-executor?
Estate Law Canada
English
This is a private source. Learn more here.

PDF FAQ for Personal Representatives
Turning Point Law
English
This is a private source. Learn more here. Note that this resource was written before the law changed in 2015. The information about notice requirements is no longer current.


Web More Mistakes That Alberta Executors Make During Probate
Kahane Law Office
English
This is a private source. Learn more here.

Web Helping to stop unwanted direct mail to the deceased
Canada Bereavement Registry
English
This is a private source. Learn more here.

General tips for settling estates in Canada


Web Income Tax Obligations and Accounting Requirements
Huffington Post Canada
English

PDF Executor Assistance Guide
Servus Credit Union
English
This is a private source. Learn more here.

PDF Executor's Handbook
Dynamic Funds
English
This is a private source. Learn more here.

PDF Settling an Estate: An Executor's Guide to Estate Administration
Libro Credit Union
English
This is a private source. Learn more here.

Web What are an Executor’s Duties?
Dedicated Financial Solutions
English
This is a private source. Learn more here.

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book So You've Been Appointed Executor
Tom Carter
English
Get the full book from a library near you: The Alberta Library.

 

Compensation for Personal Representatives

Web Executor, Trustee, And Attorney Compensation
Huffington Post Canada
English

Web Frequently Asked Questions - Court of Queen's Bench
Government of Alberta
English
See “What are the fees allowed for compensation of solicitor and/or executor fees on an estate matter?”

PDF The Role of the Personal Representative in Litigation
Miller Thomson LLP
English
This is a private source and can be a challenge to read. Learn more here. See “Personal Representative Compensation.”

Web Executor compensation - how do we know how much he/she can have?
Estate Law Canada
English
This is a private source. Learn more here.

Web Arriving at a co-executor's fee
Estate Law Canada
English
This is a private source. Learn more here.

 

Issues about claims and gifts

PDF For Mercy’s Sake: Principles of family maintenance and support in the 20 years since Tataryn
de Villars Jones LLP
English
This resource can be a challenge to read. Learn more here.

PDF Rectification and Validation of Wills and Codicils
de Villars Jones LLP
English
This resource can be a challenge to read. Learn more here.

The following resources are not available online. The links below will give you a preview of each article, and you can find the full articles at libraries across Alberta. Please note that these articles are sections in whole books. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Limitation Dates for Wills and Estates Claims and Actions (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law LibrariesThe Alberta Library.

Book Challenging Inter Vivos Wealth Transfers (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law LibrariesThe Alberta Library.

 

Government and tax issues

Web Dealing with Death
Government of Canada
English

Web What to do when someone has died
Government of Canada
English

Web Following a death
Government of Canada
English

Web Allowance for the Survivor
Government of Canada
English

Web EI Regular Benefits - While on EI
Government of Canada
English

Web Preparing the Final Tax Return
Dedicated Financial Solutions
English

Web Preparing a Final Tax Return
Dedicated Financial Solutions
English

Web Income tax returns that an executor must file
Estate Law Canada
English
This is a private source. Learn more here.

Web What is a T3 tax return?
Estate Law Canada
English
This is a private source. Learn more here.

Web Who pays the tax on the RRSP when there is nothing in the estate?
Estate Law Canada
English
This is a private source. Learn more here.

French resources:

Web Que faire lorsqu'une personne est décédée
Government of Canada
French

Web Suite à un décès
Government of Canada
French

Web Allocation au survivant
Government of Canada
French

For more information about government benefits for survivors, see the “Financial benefits for surviving loved ones” section above.

Digital assets

Presentation Understanding Digital Assets: Practical Approaches to Estate Planning and Administration
Alexander Holburn Beaudin + Lang LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web Digital life after death: Practice tips for estate planning and administration
Fillmore Riley LLP
English
This resource is from a private source outside Alberta. Learn more here.


Web What Happens to my Facebook When I Die?
McConnan Bion O'Connor & Peterson
English
This resource is from a private source outside Alberta. Learn more here.

Web Memorialization Request
Facebook
English
You will need to log in to the deceased’s Facebook account to access this resource.

For detailed reports about how Canadian lawyers and courts have addressed this issue, see the following resources. These reports can be a challenge to read. Learn more here.


Aboriginal matters and on-reserve considerations: Dealing with a loved one’s remains

When dealing with a loved one’s body, all of the above information applies. It does not matter whether you are Aboriginal or live on-reserve when it comes to:

  • Pronouncing the death
  • Unexpected death
  • Donating organs, tissues, or the body
  • Getting the death records

However, some aspects of death may be different for Aboriginal families. For example, rituals around death, funerals, and burial are determined by the individual First Nations. How a person is buried on-reserve in not dictated by law. Instead, it depends on the historical cultural ceremonies passed down from one generation to the next. First Nation communities may also choose to open their burial grounds to non-Aboriginal people. 

For information about the rituals related to a particular First Nation, contact the Chief and Council or Band Administration to get specific information on funeral and burial ceremonies.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French
Aboriginal matters and on-reserve considerations: Estate administration

For Aboriginal people without Indian Status, all of the laws described above apply. 

However, for some Status Indians, the federal Indian Act will also apply. The Indian Act rules and requirements might even trump the provincial rules. If the Indian Act applies to the deceased, this will mean big differences when managing the estate of the deceased.

For more information about Indian Status, see the following resource.

Does the Indian Act apply to you?

The minister of Indigenous and Northern Affairs Canada (INAC) has jurisdiction over the Wills and estates of deceased Status Indians if they:

  • ordinarily lived on-reserve at the time of their death; or
  • ordinarily lived on land that belongs to the government of Canada (also called “Crown lands”) at the time of their death.

Rules under the Indian Act

Indian Act rules for a valid Will

Under the Indian Act, a Will must:

  • be written;
  • be signed by the Testator;
  • dispose of assets; and
  • take effect upon death.

These requirements are simpler than under Alberta provincial law. For example: even when the Will is all typewritten, there is no need for witnesses. In other words, the concept of what is “valid” is different under the Indian Act.

The Personal Representative / Executor under the Indian Act

If the Indian Act rules apply to the deceased, no one has the authority to be a Personal Representative until he or she is appointed by Indigenous and Northern Affairs Canada (INAC).

Whether or not the deceased had a Will, the minister will appoint a person (such as a relative) who will administer the estate. This person is called the “Executor.”

The minister’s authority overrides who the deceased named as Personal Representative in his or her Will. INAC may use the Will as evidence of the deceased’s wishes, but the Will does not determine who will be appointed to manage the deceased’s affairs. The Will will not have any force or effect until approved by INAC. In other words, the minister must approve the Will before any money or property can be distributed to anyone named in the Will.

Be Aware

This is true even if the Testator lived off-reserve in a care facility at the time of death. As long as the person would ordinarily live on-reserve, the Indian Act rules still apply.

The approval of the minister is applied for after the Testator has died. For more information about this application, see the Process tab of this Information Page.

For more information about administering the estate of a Status Indian, see the following resources.


Web Estate Administrator/Executor Checklist
Government of Canada
English

Web Estates and Trusts
Government of Canada
English

Web LawNow: Where There's a Will, There's a Way
Centre for Public Legal Education Alberta
English
See p. 19-22.

Web Wills and estates on reserve
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

PDF Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC
Atira Women's Resource Society
English
This resource is from outside Alberta. Learn more here. See Chapter 8.

French resources:



Web Successions et fiducies
Government of Canada
French

 

Bequests of on-reserve property

Many First Nations have their own ways of determining where families will live on-reserve. The Band may also follow their own customs and traditions for dealing with on-reserve property. If a person leaves a bequest of on-reserve property that conflicts with band customs and traditions, this can cause problems and it may not be possible to carry out the bequest.

To find out what the deceased’s Band’s rules are about gifting on-reserve property in a Will, contact the Band office.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French

Rights of the surviving spouse or common-law partner on-reserve: The Family Homes on Reserves and Matrimonial Interests or Rights Act

The law about the use and division of on-reserve family property has recently changed. The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) gives new on-reserve property rights to spouses and common-law partners.

Does the FHRMIRA apply on the deceased’s reserve?

The FHRMIRA states that:

  • A First Nation government can make its own rules about the division of family property on its own reserve.
  • If a First Nation chooses to make its own rules, those rules must be made public and it is those rules that will apply on that particular reserve (not the FHRMIRA).
  • If a First Nation chooses not to make such rules, the Family Homes on Reserves and Matrimonial Interests or Rights Act will apply on that particular reserve.

A list of First Nations that have made their own rules about family property division can be found in the following resource.


To find out about the current state of property law on the deceased’s reserve, contact the Band associated with that reserve.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French
Be Aware

There are still many resources on the internet and in libraries that refer to the state of the law before the introduction of the Family Homes on Reserves and Matrimonial Interests or Rights Act in 2014. Always be certain that the information you find deals with the current law about on-reserve property.

If the FHRMIRA applies on the deceased’s reserve, the surviving spouse or partner has specific rights. This is true whether or not the deceased left a Will, and these rights cannot be changed through the Will. These rights are described just below.

FHRMIRA: The survivor’s right to stay in the family home for 180 days

Under the FHRMIRA, when one spouse or common-law partner dies, the surviving spouse or common-law partner may remain in the family home for up to 180 days. This true even if he or she does not hold an interest in or right to the family home. 

Be Aware

The surviving spouse or partner has this right even if he or she is not a member of that particular First Nation or is not a Status Indian.

FHRMIRA: Staying in the family home for longer than 180 days with an Exclusive Occupation Order

In addition to allowing the survivor to stay in the family home for at least 180 days, FHRMIRA allows for the survivor to stay longer than 180 days if they get an Exclusive Occupation Order (EOO).

However, before that can happen, judges to hear the applications must be appointed. This has not yet happened. As a result, in Alberta it is currently not possible to apply for Exclusive Occupation Orders under this law.

For more information about EOOs under the Family Homes on Reserves and Matrimonial Interests or Rights Act, see the following resources.

PDF Matrimonial Real Property Rights on Your Reserve
Centre of Excellence for Matrimonial Real Property
English

Web Your home on reserve: Who can stay in the family home on reserve?
Legal Services Society
English
This resource is from outside Alberta. Learn more here.





Web Frequently Asked Questions
Centre of Excellence for Matrimonial Real Property
English

Presentation The Family Homes on Reserves and Matrimonial Interests or Rights Act
Courthouse Libraries BC
English
This resource is from outside Alberta. Learn more here.

PDF Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC
Atira Women's Resource Society
English
This resource is from outside Alberta. Learn more here. See p. 50.

 

FHRMIRA: The potential right to inherit the estate

Under the FHRMIRA, a surviving spouse or common-law partner can potentially inherit the estate of the deceased, or may be able to apply to the Court for half of the value of the family property. The exact inheritance will depend on the facts of the case and the rules for the specific Band.

Be Aware

Ownership of real property (homes and land) is different on-reserve than it is off-reserve. Band members do not “own” their land. Instead, they may have a right to use the land in some way. This is called having an “interest” in the land. The exact “interest” that Band members have will depend on the Band.

No matter what the deceased said in his or her Will, the surviving spouse or partner has certain rights regarding the family home and other on-reserve property. These rights are different depending on the survivor’s status on the reserve:

  • If the survivor is a member of the First Nation where the property is located, he or she may be entitled to a share of the deceased’s interest in the home or land. This is true even if the Certificate of Possession was in the deceased’s name alone.
  • If the survivor is not a member of the First Nation where the property is located, there can be no transfer of real property (this includes land and homes). However, the survivor may be entitled to compensation. The amount of compensation will depend on a number of factors. You may want to get the advice of a lawyer.

FHRMIRA: More information

For more information about the death-related property rights of spouses and common-law partners under the FHRMIRA, see the following resources.

PDF Matrimonial Real Property Rights on Your Reserve
Centre of Excellence for Matrimonial Real Property
English



Web Frequently Asked Questions
Centre of Excellence for Matrimonial Real Property
English

PDF Understanding Estates Management on Reserve
Centre of Excellence for Matrimonial Real Property
English

Web Wills and estates on reserve
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Web Your home on reserve: Who can stay in the family home on reserve?
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Presentation The Family Homes on Reserves and Matrimonial Interests or Rights Act
Courthouse Libraries BC
English
This resource is from outside Alberta. Learn more here.
Blended family considerations

In Alberta, the law around dealing with death is no different for blended families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

However, although the law is the same, the family issues may be much more complicated. For example: there can be misunderstanding and emotional conflict about who should have the right to make decisions and who gets what. It may take some extra effort for those involved to understand and accept what the law says about these things.

In these situations, the job of the Personal Representative may be more difficult. If you need help, you can always talk to a lawyer or community organizations. For more information about working with a lawyer, see the Working with a Lawyer Information Page. For information about other resources that may be available to help you, see the Community Legal Resources & Legal Aid Information Page.

For information about remarriage and potential spousal claims against the estate, see the following resource.

For information about applying for support and maintenance from the deceased’s estate, see the Process tab of this Information Page.

LGBTQ considerations

In Alberta, the law around dealing with death is no different for LGBTQ families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

Unfortunately, LGBTQ families sometimes still face social stigmas, homophobia, transphobia, discrimination, and misunderstanding. If the deceased was not “out” to extended family members, there can be additional misunderstanding and conflict about who should have the right to make decisions and who gets what. It may take some extra effort for those involved to understand and accept what the law says about these things.

In these situations, the job of the Personal Representative may be more difficult. If you need help, you can always talk to a lawyer or community organizations. For more information about working with a lawyer, see the Working with a Lawyer Information Page. For information about other resources that may be available to help you, see the Community Legal Resources & Legal Aid Information Page.

Polyamorous relationships

In general, much of the law around dealing with death is no different for polyamorous families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above. 

However, only 2 people can be legally married to each other, and only 2 people can be Adult Interdependent Partners (AIPs). As a result, any rights given to the person with the status of “spouse” or “AIP” can only involve one of the partners.

In addition, polyamorous families sometimes still face social stigmas and difficulties that other families may not. Extended family members may not know about or understand the polyamorous relationships. This can lead to conflict about who should have the right to make decisions and who gets what. It may take some extra effort for those involved to understand and accept what the law says about these things.

In these situations, the job of the Personal Representative may be more difficult. If you need help, you can always talk to a lawyer or community organizations. For more information about working with a lawyer, see the Working with a Lawyer Information Page. For information about other resources that may be available to help you, see the Community Legal Resources & Legal Aid Information Page.

Concerns for immigrants and other non-citizens

Regardless of the deceased’s immigration status, the laws about dealing with the body are the same. The deceased’s immigration status will not affect how the death is treated. However, some parts of the situation can be more complex.

Final resting place

Although the deceased can be cremated or buried in Alberta, the loved ones may want to return the deceased’s body to his or her country of origin. The laws about bringing in a body or cremated ashes are different in each country. For more information, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

If the deceased was your spouse/partner and was sponsoring you to immigrate

If you were being sponsored for immigration by your partner or spouse who has died, you may have been given “conditional” permanent residence status. As of April 18, 2017, this rule no longer applies to sponsored immigrants to Canada.

  • Anyone who had been considered a “conditional permanent resident” is no longer subject to the conditions.
  • If you were being investigated for not following this rule after separating from your sponsor, the investigation will stop.
If one of the parties is involved in criminal proceedings

In general, the law around dealing with death is no different for families where one of the parties is involved in criminal proceedings than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

However, there can be differences or complications if one of the parties is in prison. For example:

  • If the deceased died in prison, the medical examiner will be involved.
  • When a person in prison is named as the Personal Representative in a Will, it is not likely that he or she will be able to do the job. If that is the case, a person who is named as the alternate Personal Representative can take the job. Or, if there is no alternate PR named in the Will, an interested party can apply to the Court to be appointed as Personal Representative.
  • If a person in prison is left something in a Will or under an intestacy, it may be more complicated to get it to them.

Process

Learn more about the steps you may need to take when a loved one has died, including:

  • Finding a funeral home
  • Dealing with death records, including registering a death, getting a Certificate of Death, and correcting a death record
  • Arranging organ, tissue, and body donation
  • Applying to the Court of Queen’s Bench for a grant of probate or a grant of administration
  • Being a Personal Representative, including notice requirements and asking the Court for “advice and direction”
  • Challenging a Will
  • Applying to the Court of Queen’s Bench for family maintenance and support

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here

Last Reviewed: May 2017
Who is this Information Page for?

This Information Page contains information about legal issues to consider when you are dealing with a death in the family.

Tip

If you are just starting out with this topic, it’s a good idea to begin on the Law tab of this Information Page. There you will find basic information about what the law says, what the words mean, and other issues that will help you understand better what to ask for and how to get it. Once you have the basics down, you will be in a better position to learn about the process you need to follow to resolve your legal issues.

In general, the law and process on this Information Page is for people who are dealing with:

  • a death that occurred in Alberta, or
  • an estate that is located in Alberta.

This is because for Alberta law to apply, the deceased should have lived in Alberta and the deceased’s property should be in Alberta. If the deceased died outside of Alberta, or any part of the estate is located in another province, territory, or country, please see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

You are currently on the Process tab of this Information Page, which has information about the processes you need to follow to deal with the death of a loved one. For information on what the law says about dealing with death, click on the Law tab above. There is also important information in the Common Questions and Myths tabs above.

Calling the Office of the Medical Examiner

For information about how to contact the medical examiner, see the following resources.

Web Information for physicians: reporting a death
Government of Alberta
English
​​
Web Contact OCME
Government of Alberta
English
Getting a Medical Certificate of Death

The Medical Certificate of Death is the medical form completed at the time of death by either the attending doctor or the medical examiner. This document has information about the medical cause of death. For each death in Alberta, the Medical Certificate of Death must be signed and completed by a doctor within 48 hours of the death. The Medical Certificate of Death is not the same thing as the Certificate of Death.

For information about who is eligible for a copy of the Medical Certificate of Death and how to apply, see the following resources.

Web Death Certificates & Documents | Eligibility
Government of Alberta
English
​​
Web Death Certificates & Documents | How to apply
Government of Alberta
English
Finding a funeral home

A list of funeral homes in Alberta can be found in the following resources.

Web Funeral Provider Directory
Alberta Funeral Service Association
English

Web Funeral Homes
Alberta Funeral Services Regulatory Board
English
​​
Web Canadian Memorial Societies
Funeral Information Society of Ottawa
English
Registering a death

To register a death, you must complete a Registration of Death form.

If you are using a funeral home, the Registration of Death form is usually completed at the funeral home when the funeral arrangements are being made. The funeral home will register and submit the original documents to Vital Statistics.

If you are not using a funeral home, you will need to contact Vital Statistics for the registration form. When you contact them, you may be referred to a specialist who deals with these matters.​

Web Vital Statistics Office
Government of Alberta
English

After a death is registered, you can order death documents, such as a Certificate of Death or a photocopy of the Registration of Death form, from a registry agent or Registry Connect.

For more information, see the following resources.

Web Register a Death | How it works
Government of Alberta
English
​​
Web Registration of Deaths
Government of Alberta
English

Web Find a registry agent
Government of Alberta
English
​​
Web Registry Connect
Registry Connect
English
Getting a Certificate of Death

A certificate of death is the official government document that confirms the death of a person. This document has details about the identity of the deceased and the date and place of death. It does not have information about the medical cause of death: that information is included in the Medical Certificate of Death (see the “Getting a Medical Certificate of Death” section above).

For information about who is eligible for a copy of the Certificate of Death and how to apply, see the following resources.​

Web Death Certificates & Documents | Eligibility
Government of Alberta
English

Web Death Certificates & Documents | How to apply
Government of Alberta
English
Tip

If you are using a funeral home, the funeral home can also provide you with copies of the Certificate of Death.

Correcting a death record

For information about how to correct a mistake on any record relating to a death, see the following resources.

Web Change birth, marriage or death records
Government of Alberta
English
Also see “Eligibility” on the right of the page.
​​
Organ donation

If a Personal Representative or other loved one with authority is giving consent for organ and/or tissue donation, the consent will have to be given in writing. Medical staff will be able to provide you with the required forms. 

Remember

If the deceased planned to donate their body to science, then the deceased cannot also donate internal organs. For more information, see the “Donating a body to science” section below.

Donating a body to science

Universities across Canada accept body donations for medical research and teaching medical students. Many universities require pre-registration with consent of the donor. However, some may accept consent by the Personal Representative.

Remember

If the deceased is an organ donor, they may not be able to donate their body to science.

For more information, see the following resources.

Web Body Donation Program: How to Donate
University of Calgary
English

PDF Anatomical Gifts Program: Donor Registration
University of Alberta
English
Getting a burial permit

A burial permit is required to bury, cremate, or otherwise dispose of the body of a deceased person.

If you are using a funeral home, the staff can help you arrange this.

If you are not using a funeral home, you will need to contact Vital Statistics after you have the Medical Certificate of Death and the Registration of Death forms completed. Vital Statistics will help you get a burial permit. When you contact them, you may be referred to a specialist who deals with these matters.

Remember

Before a body can be cremated, the medical examiner must review the Medical Certificate of Death. The medical examiner will then issue something called a “Form 4,” which gives approval for the cremation. You will not be able to get a burial permit until you have this form.

For more information, see the following resources.

Web Burial Permits
Government of Alberta
English
​​
Web Vital Statistics Office
Government of Alberta
English

Web Ordering non-Alberta documents
Government of Alberta
English
Applying for a grant of probate or a grant of administration

To get probate, you must fill out the correct forms and submit them to the Court. You can do this on your own, or you can hire a lawyer to help you.

For information about how to make the application on your own, see following resources. Note that these resources are from private sources. Learn more here.

Web Applying for probate without a lawyer
Estate Law Canada
English

Web Probate Fees and Probate Forms in Alberta
Kahane Law Office
English

The rules that govern the process are called the Surrogate Rules. You can read the rules in the following resource.

You can order your own package of the Surrogate Rules, which includes instructions and the forms (called the “NC Forms”) you will need to submit to the Court.


Web Alberta Queen's Printer Location
Government of Alberta
English

The package contains many forms. Not all of them have to be filled out in every case. For example:

  • some forms only need filled out if you are applying for a grant of probate; and
  • some forms only need filled out if you are applying for a grant of administration.

It is very important that you properly complete all of the forms that apply to your situation. The rules and the instructions will help you figure out which forms you need. But sometimes it is still not clear. See the following resource for a checklist of the most common errors made on these applications.

Be Aware

Asking the Court for a grant of probate or a grant of administration will involve more than just you and the judge. You will have to inform other people about your court application. These people have the right to respond to your application. The forms linked above explain who you must involve in the process. If someone chooses to respond to your application, the matter may require a court hearing.

If you need more help, you can always talk to a lawyer or community organizations. For more information about working with a lawyer, see the Working with a Lawyer Information Page. For information about other resources that may be available to help you, see the Community Legal Resources & Legal Aid Information Page.

If you represent yourself, the Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
Being a Personal Representative: Understanding the role

Being a Personal Representative is an important and serious job. It also comes with very specific legal responsibilities. Not meeting these requirements can lead to problems. You could even have legal action taken against you.

As the Personal Representative, you must know about the rules, regulations, and laws that apply to the work you must complete. Be sure you understand what is required of you under the Estate Administration Act.

Even if you have done this job before, remember that the law about managing estates changed significantly in 2015.

For detailed information about your role, see the Law tab of this Information Page and the following resources.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English

PDF What to Do When Someone Has Died: A Checklist
Sylvan Lake & District Victim Services
English

Web Estate Planning: Finding Heirs of the Deceased
Huffington Post Canada
English

Web The Process Of Locating The Heirs Of An Estate
Huffington Post Canada
English

Web The Tax Burden of Estate Planning
Huffington Post Canada
English

PDF Survivors' Resource Guide
Trinity Funeral Home
English
This is a private source. Learn more here.

Web Where do you look for someone's Will?
Estate Law Canada
English
This is a private source. Learn more here.

Web Things for an executor to consider when selling a house from an estate
Estate Law Canada
English
This is a private source. Learn more here.

Web Executors, do your research before disposing of small items
Estate Law Canada
English
This is a private source. Learn more here.
Personal Representatives: Providing notice

Under the Estate Administration Act, all Personal Representatives must give “notice.” Providing “notice” is formally telling people about the death and what they were given in the Will (if anything). Exactly who gets notified and what information they are given depends on whether or not a grant of probate or a grant of administration is being applied for.

The details of who must get notice and what that notice must include are on the Law tab of this Information Page.

When not applying for a grant of probate or a grant of administration

The Surrogate Rules package has notice forms that the Personal Representative can use to provide notice. They all start with “NGA”:

  • NGA 1 is the form of notice for beneficiaries;
  • NGA 2 is the form of notice for family members;
  • NGA 3 is the form of notice for the spouse; and
  • NGA 4 is the form of notice for an Attorney, Trustee, Guardian, and the Public Trustee.

The Personal Representative does not have to use these forms. However, they were created to help ensure that all of the Estate Administration Act requirements were met, so they are a helpful resource.

Unlike many court documents, the notices do not have to be formally “served.” However, they must be given in a way that is likely to be noticed by the recipient.

You can order your own package of the Surrogate Rules, which includes instructions and the forms.

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Web Alberta Queen's Printer Location
Government of Alberta
English

When applying for a grant of probate or a grant of administration

The Surrogate Rules package has the notice forms that the Personal Representative must use to provide notice. They start with “NC” and are part of the package that has all of the information and forms required to apply for a grant of probate or a grant of administration.

The forms must be formally “served” on the people they are sent to. For more information about service, see the Understanding the Court System & Processes Information Page.

You can order your own package of the Surrogate Rules, which includes instructions and the forms you will need to submit to the Court.

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Web Alberta Queen's Printer Location
Government of Alberta
English
Personal Representatives: Asking the Court for “advice and direction”

If a Personal Representative is ever unsure about what to do, he or she can ask the Court of Queen’s Bench for “advice and direction.” This can be especially helpful in situations that are sensitive or contentious (that is, involving strong disagreements or arguments).

Hiring a lawyer or representing yourself?

If you go to court, you can choose to either be represented by a lawyer, or to represent yourself.

If you hire a lawyer, your lawyer will explain to you what is happening with your case. A lawyer can help you reach an out-of-court agreement, or represent you in court. For more information about your options for legal representation and assistance, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page.

If you represent yourself, the Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English

Also, the Court of Queen’s Bench has created a Court Procedure Booklet that has helpful information.

Before you go to court: Get to know the court system

The court process is not simple, and there are many rules. If you represent yourself, you will need to follow the required processes and the rules.

Chambers

If you are asking the Court for advice and direction, your matter will be heard in “civil chambers.” These hearings are in courtrooms that are open to the public, where the judge hears a list of different cases by different people.

There are 2 kinds of chambers:

  • regular chambers (sometimes called “morning chambers”); and
  • special chambers (sometimes called “afternoon chambers”).

Regular chambers is for simpler matters that can be heard in 20 minutes or less. Special chambers is for more complex matters that need more time.

Queen’s Bench “Practice Notes”

“Practice Notes” are additional rules issued by the Court, often about court procedures. These rules apply only in the Court of Queen’s Bench (not in Provincial Court). These rules are not just for lawyers—you must follow them even if you are representing yourself. For a list of the Practice Notes, see the following resource.

Web Court of Queen's Bench: Practice Notes
Government of Alberta
English

The parties involved

Asking the Court for advice and direction will involve more than just you and the judge. You will have to inform other people about your court application. These people have the right to respond to your application. The forms linked below explain who you must involve in the process.

Scheduling hearings and giving notice to the others

The sections below will explain all of the paperwork that needs to be completed for chambers hearings. You will learn that there are rules about:

  • how to schedule hearing dates; and
  • when you have to let the other party know about the application. This is called “giving notice.”

The court has these rules to make sure that everyone has enough time to prepare for court and no one is taken by surprise. This leads to fairer results.

Because of this, courts are quite strict about the rules. However, sometimes there are good reasons to not follow the rules. In such cases, you may want to ask for an “exception” to the rules. This means you are asking for permission to not follow the rules.

For example, it may be possible to:

  • get time limits shortened for giving notice to the other party (this is also called “abridging” the time); and
  • get court dates moved up to an earlier date.
Be Aware

These changes in the rules are for special situations. There must be a very good reason to request an exception. Also, if you ask for an exception, there are very specific steps that you must follow.

For information about whether you can ask for any of these exceptions, contact the Court of Queen’s Bench in your judicial centre, or ask at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Before you go to court: Is this the right court to file in?

On this topic, there are 2 questions to ask:

  1. Is Alberta the right province in which to go to court? Should you be making your application in a different province or a different country? Sometimes it is easy to tell. For example: if you live in Alberta, the Testator lived in Alberta, and any property being asked about is also in Alberta, then Alberta will be the correct province.However, if you are asking about property that is not in Alberta, Alberta will not be the correct province. For more information about Wills and out-of-province issues, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.
  2. Is this the correct judicial centre? Alberta is divided into several areas called “judicial centres” (previously called “judicial districts”). As a general rule, applicants file their documents in the courthouse in the judicial centre where they live. The matter can then be heard in that judicial centre as well. If there is already a grant of probate or a grant of administration, the application should be filed in the judicial centre where the grant was given.

If at any point you want to change the judicial centre, you will have to make a separate application for that. See the following resource.

Is/was there domestic violence?

If there is/was domestic violence in your family and it affects the issue being asked about, you can bring it up in your court documents.

The application for advice and direction

To ask the Court for advice and direction, you will need to file 2 documents:

  1. Form C1 - the Application form. This is the form in which you explain what you are asking for. This form also lists the other parties that you must involve (see “Serving the paperwork” below).
  2. Form C2 - the Affidavit. This is the form in which you provide the information and evidence that the Court will need to be able to give you advice and direction.

These forms are available in the package of documents and procedures described in the Surrogate Rules.

Web Court of Queen's Bench Act: Surrogate Rules (Alberta Regulation 130/95)
Government of Alberta
English
See “Part 2: Contentious Matters.”

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). This can be completed with a Commissioner for Oaths or a Notary Public. You can find Commissioners for Oaths and Notaries Public in the yellow pages of the telephone book or online at YellowPages.ca.

“Filing” the paperwork and choosing a court date

To file the paperwork, you must hand in the originals and multiple copies of everything—one copy of each document for you and one for each party that you must serve—at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

At the courthouse, and with the help of a court clerk, you will be able to pick a court date. Depending on your location and the amount of time your matter is expected to take, you may have to appear in court in regular chambers (also called “morning chambers”) or in special chambers (also called “afternoon chambers”). The court clerk will help you figure out what time you are to appear. Regular chambers is for matters that can be heard in 20 minutes or less. Special chambers is for more complex matters that need more time.

When choosing a date, you will need to make sure you have enough time to “serve” the other parties (see the next step). You also need to give the other parties enough time to respond to your application.

After you have been given a court date, write it down on the first page of all of the copies of your application. The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is filed, you will need to “serve” it on the other parties. “Service” is the legal term for delivering certain kinds of documents. This is to notify them that a hearing is taking place. This means you have to make sure that they get the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter.

The C1 form has a list of the people that must be served. The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms.

Web Resolution and Court Administration Services
Government of Alberta
English

“Proving” that the paperwork was served

It is not enough for you to just serve the other parties: you must also prove that you served the other parties. To do so, the person who served the paperwork must swear the Affidavit of Service provided in the Surrogate Rules. You will also need to bring a copy of this form with you to court.

Web Court of Queen's Bench Act: Surrogate Rules (Alberta Regulation 130/95)
Government of Alberta
English
See Form NC27.

Dealing with responses

The other parties may respond to your application. If this occurs, your matter may get much more complicated and you may wish to consult a lawyer. For more information about your options, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page. You may also be able to find some help at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Plan to go to the chambers hearing

The Application tells you when and where court will be held. It is your responsibility to make sure that you are in the correct courtroom. When you enter the courthouse, you can ask a staff member for directions.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Preparing for chambers

You will be appearing in “chambers” in the Court of Queen’s Bench. Chambers is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different matters by different people. Yours is one case on the list.

For most people, going to court will be a brand new experience. It may also come as a bit of surprise. Being in court is not really as it appears on most television shows, and you will likely not be familiar with the rules of court (yes, there are rules!). Also, most people find that dealing with family issues in court is stressful.

For these reasons, it is a good idea to prepare for the court experience. The following resources provide some very useful information on preparing for court.


For more information, see the Representing Yourself in Court Information Page.

Asking for an adjournment

Sometimes, due to circumstances beyond their control, one or both of the parties will not be able to attend court, or will not be prepared for court. It is possible to ask for a court hearing date to be moved. This is called an “adjournment.”

If all of the parties agree, you can arrange for an adjournment well in advance of the court hearing date. To find out how to do that, call your Court of Queen's Bench Chambers Clerk.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

You can also ask for an adjournment on the date of the court hearing. If all parties agree, you can ask for an adjournment before the chambers list begins. The judge will ask if there are any preliminary matters—this is the time to make the request. Judges often grant such adjournments, but not always (for example, if they are concerned that one of the parties will be harmed by the adjournment, or if they feel that the adjournment option has been abused). If any party does not agree, you must wait for your turn on the list and request an adjournment when your turn comes. The judge may or may not grant the adjournment. 

You must have a good reason to ask for an adjournment. The Court is not pleased if adjournments are just asked for as a delay tactic. The Court keeps track of all adjournment requests. If there are too many requests for adjournments, the Court may deny the request or even impose penalties.

After the chambers hearing is over

When your court hearing is over, the judge will give you an Order providing direction. In most cases, the Order granted by the judge will be typed up by the court clerk. It may be ready shortly after the hearing. If it is not, it will be mailed to you. It will also be mailed to any other parties. If one of the parties is represented by a lawyer, the judge may ask that lawyer to type it up.

Once you have the Order, you may need to serve it on the other parties—check with the court clerks. Remember, if you do have to serve the other party, you will also need to complete and file an Affidavit of Service.

Being a Personal Representative: Resigning from the role

Just because you have been named a Personal Representative does not mean that you have to accept the job. Similarly, even if you have started the job, you may be able to resign.

If the Testator is still alive

If the Testator is still alive and still has capacity, you should let him or her know that you no longer want the job. The Will can still be changed. You may wish to let the Testator know in writing and keep a copy for your records. That way, it will be very clear and there will be less chance for future misunderstanding.

If the Testator is still alive but no longer has capacity, you can inform whoever is currently handling the Testator’s affairs. This must be done in writing. Because the Testator has lost capacity, the Will can no longer be changed (unless the Testator regains capacity).

Usually, Testators name another person to take the job in case their first choice cannot take the job, or will not take the job (this is called “naming an alternate”).

  • If an alternate was named and you do not take the job, the job will go to the alternate.
  • If no alternate was named, after the Testator dies someone who wants the job will have to apply to the Court for a grant of administration to be appointed as the Personal Representative.

If the Testator has died

If the Testator has died, you can still resign, or refuse to take on the job. Exactly what you must do depends on whether or not you have started the job.

If you have not started the job

If you have not yet started the job, you can quit (or “renounce”) the job by providing written notice to the beneficiaries. Sometimes you will also have to provide written notice to the Court. To renounce in this way, you must be certain that you have done nothing related to the tasks of a Personal Representative. Sometimes, even making just one little decision, or one phone call, can be viewed by the Court as “starting” the job.

Often, especially if probate is applied for, providing notice will mean using the NC12 form set out in the Surrogate Rules. You can read the rules in the following resource.

You can order your own package of the Surrogate Rules, which includes instructions and the form you will need to submit to the Court.


Web Alberta Queen's Printer Location
Government of Alberta
English

The package contains many forms. Not all of them have to be filled out in every case. It is very important that you properly complete all of the forms that apply to your situation. The rules and the instructions will help you figure out which forms you need.

If you have started the job

It is more difficult to quit if you have already started work on the estate. You must apply to the Court of Queen’s Bench for permission to quit (also called “renouncing”). The judge does not have to grant your request. The Court may not allow you to simply walk away. If the judge does grant your request, you must give the new Personal Representative the records you have kept from the time you were the Personal Representative.

When considering your request, the Court will ask for a full accounting of all financial transactions that you have done on behalf of the estate. This includes an update on the current balances and values of all assets, and an explanation for each expense. This process is sometimes called “passing of accounts.” Until the Court has approved the accounts and dismissed you from the role of the Personal Representative, you will remain the Personal Representative.

This is a complex area of law, and you will want to make sure everything is in order before you ask to resign. You may wish to consult a lawyer. For more information, see the Working with a Lawyer Information Page. For information about other resources that may be available to help you, see the Community Legal Resources & Legal Aid Information Page.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
Challenging a Will

If you have a concern about the validity of a Will, or a part of it, you may be able to challenge the Will in court.

The general process is described in the following resources. However, these resources describe the process in Ontario. Alberta processes are similar, but they will be slightly different. Be sure to understand Alberta law and the Alberta documents found in the Surrogate Rules (below).

Web What Happens When a Will Is Challenged?
Huffington Post Canada
English

Web What Happens When a Will Is Challenged? Part 2
Huffington Post Canada
English

To challenge a Will, you will have to use the documents and procedures described in the Surrogate Rules.

Web Court of Queen's Bench Act: Surrogate Rules (Alberta Regulation 130/95)
Government of Alberta
English
See “Part 2: Contentious Matters.”

Your matter may be heard in “special chambers.” For detailed information about special chambers applications, see the following resource.

PDF Estate Litigation: Surrogate Court Special Chambers Applications
Miller Thomson LLP
English
This resource can be a challenge to read. Learn more here.

As you can see from the resources above, this is a very complex area of law. You may wish to consult a lawyer. For more information about your options, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
Applying for family maintenance and support

The Surrogate Rules package has forms that can be used to make an application for maintenance and support from the estate of a deceased person. They start with a “C.”

You can order your own package of the Surrogate Rules, which includes instructions and the forms you will need to submit to the Court.


Web Alberta Queen's Printer Location
Government of Alberta
English
Be Aware

As with any court application, there will be filing fee.

The forms must be formally “served” on the people they are sent to. For more information about service, see the Understanding the Court System & Processes Information Page.

Remember

If family members want to apply for maintenance and support, they must do so within 6 months from the date of a grant of probate or a grant of administration.

This is a very complex area of law. You may wish to consult a lawyer. For more information, see the Working with a Lawyer Information Page. For information about other resources that may be available to help you, see the Community Legal Resources & Legal Aid Information Page.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
Responding to a court application for “advice and direction”

If a Personal Representative is ever unsure about what to do, he or she can ask the Court of Queen’s Bench for ”advice and direction.” This can be especially helpful in situations that are sensitive or contentious (that is, involving strong disagreements or arguments).

If you have been served with documents saying that a Personal Representative has applied to the Court for advice and direction, you can choose to respond. The forms you will need to file will be different depending on the situation.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English

If you choose to respond, these issues can sometimes get very complicated. Consider talking to a lawyer about the best way to proceed. See the Community Legal Resources & Legal Aid and the Working with a Lawyer Information Pages for more information about your legal options.

Asking to remove Personal Representative from his or her duties

Sometimes, loved ones are so concerned about a Personal Representative’s actions that they want to remove the person from power.

As a first step, you may wish to consider whether it would be possible to resolve your issues by talking with the Personal Representative. Perhaps there is a misunderstanding that can be easily cleared up. Perhaps you could fix the problem through mediation. For more information, see the Alternative Dispute Resolution Information Page

If this is not an option, you can apply to the Court of Queen’s Bench to ask that the Personal Representative be removed. This is a complex legal issue and there are various ways to do this, each with multiple steps. Consider talking to a lawyer about the best way to proceed. See the Community Legal Resources & Legal Aid and the Working with a Lawyer Information Pages for more information about your legal options.

Other kinds of litigation

There are different reasons why a person or company might want to sue the estate of a deceased person. For examples, see the following resources.

Web LawNow: Where There's a Will, There's a Way
Centre for Public Legal Education Alberta
English
See p. 14-18 and p. 26-31.

PDF Estate Litigation: Surrogate Court Special Chambers Applications
Miller Thomson LLP
English
This resource can be a challenge to read. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Challenging Inter Vivos Wealth Transfers (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

This is a very complex area of law. You may wish to consult a lawyer. For more information, see the Working with a Lawyer Information Page. For information about other resources that may be available to help you, see the Community Legal Resources & Legal Aid Information Page.

The Alberta government has Information Coordinators who may be able to help with general questions, and they can provide the forms you will need. Call the number in the following resource to see who can help in your area. These Information Coordinators are not lawyers and they cannot help you fill out the forms. You may still need to get legal advice about this topic.

Web Resolution and Court Administration Services
Government of Alberta
English
Aboriginal matters and on-reserve considerations

Estate administration

If the Indian Act rules apply to the deceased, no one has the authority to be the Personal Representative until he or she is appointed by Indigenous and Northern Affairs Canada (INAC).

Whether or not the deceased had a Will, the minister will appoint a person (such as a relative) who will administer the estate.

For information about how to start the process, see the following resources.

Web Estate Administrator/Executor Checklist
Government of Canada
English


PDF Estate Administration On-Reserve: A Guide for Executors and Administrators in British Columbia
Government of Canada
English
This resource is from outside Alberta. Learn more here.

PDF Estate Administration On-Reserve: A Guide for Executors and Administrators in British Columbia - Templates Package
Government of Canada
English
This resource is from outside Alberta. Learn more here. Some of the templates are for British Columbia, but many apply for general use or federal issues (such as taxes).

Exclusive Occupation Orders under the Family Homes on Reserves and Matrimonial Interests or Rights Act

To get an Exclusive Occupation Order under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA), you must make an application to the Alberta Court of Queen’s Bench.

Because the FHRMIRA is still quite new, no specific paperwork to apply for an Executive Occupation Order has been created yet. To find out exactly which process to follow for the courthouse where you will apply, contact the court worker or justice worker for your reserve. If you do not have a contact number for this person, you can get it from your reserve’s band office.

You may also want to ask Resolution and Court Administration Services for help.

Web Resolution and Court Administration Services
Government of Alberta
English
Tip

Your reserve’s court worker or justice worker will be able to help you complete the paperwork.

Provincial Court

Queen's Bench

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