Ongoing Family Relationships & Out-of-Province Issues

Law

Families dealing with legal issues may have ties to other provinces or countries. See the sections below to learn about:

  • What “jurisdiction” is and how it may affect your family law matters
  • Determining your province of residence, and the different types of “residency”
  • Owning property together across borders
  • Having substitute decision-makers in another province or country
  • Powers of Attorney and Personal Directives across borders
  • Guardianship & Trusteeship Orders across borders
  • What “conflict of laws provisions” are and how they can help
  • Estate planning if you have property outside of Alberta
  • Wills across borders (including International Wills)
  • What happens when an Albertan dies outside of Alberta
  • Inheriting foreign property

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: June 2016
Who is this Information Page for?

This Information Page contains information about the laws that apply when people are dealing with legal issues within the family and:

  • one or more of the parties is outside of Alberta; and/or
  • some related property is outside of Alberta.

Note: This page deals with legal concerns within families where the relationships are ongoing or continuing. It does not deal with out-of-province matters related to family breakdown or starting a family. If you need information about those matters, see the New Relationships & Out-of-Province Issues Information Page or the Family Breakdown & Out-of-Province Issues Information Page.

For example:

  • A person used to live in Alberta and wrote a Personal Directive in Alberta many years ago. That person now lives in Manitoba. Can the Alberta Personal Directive be honoured and followed in Manitoba?
  • An Albertan dies while on holiday in the Caribbean. The family is still all in Alberta. How do the family members go about dealing with their loved one’s body? Which country’s laws apply?
  • An Albertan passes away and the family wants to probate her Will. The Will was written in Alberta, and tries to deal with property that is in Ontario and in Germany. Is this possible?
  • Two family members live in Alberta and signed a contract when one lent the other some money. One family member then moves to Prince Edward Island. Which province’s law should be used if there is a dispute about the contract?

In other words, this Information Page is about “jurisdiction.” The term “jurisdiction” refers to the right or ability of a government or a court to make decisions about things.

In terms of government, “jurisdiction” refers to a particular government’s right, power, or authority to make laws.

  • The Government of Canada has “federal jurisdiction”—the laws the Government of Canada makes generally apply to everyone in Canada.
  • The provinces and territories of Canada have “provincial jurisdiction”—the laws those governments make generally apply only within that province or territory.

In terms of the court system, “jurisdiction” is also used to describe a particular court’s authority to deal with an issue. This is related to the governmental jurisdiction:

  • Federal courts (such as the Federal Court of Canada and the Tax Court) deal with the laws passed by the Government of Canada.
  • Alberta courts (the Provincial Court of Alberta and the Alberta Court of Queen’s Bench) have the authority to deal with Alberta laws. They cannot deal with the laws of another province. In other words, “jurisdiction” is the geographic area where the judge has authority to make court orders.
  • Alberta courts can also deal with laws passed by the Government of Canada, if they have been given the authority to do so. For example: Alberta courts have the authority to deal with the Criminal Code of Canada (which is a federal law).

Sometimes it is very clear that Alberta laws and Alberta courts apply. In other cases, the situation is much more complex, and jurisdiction can complicate things.

Be Aware

This is a complex area of law. Depending on the exact details of your particular situation, different laws may apply. This Information Page describes choices you may have to make, and it can get confusing. Read the information carefully, and consider getting legal advice. For more information about that, see the Working with a Lawyer Information Page.

You are currently on the Law tab of this Information Page, which has information about when Alberta laws apply, and when Alberta courts are the right courts to use to resolve your family law issues. For information on processes you may need to follow if there is an issue around jurisdiction, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

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.

jurisdiction

A particular government’s right, power, or authority to make laws. The Government of Canada has “federal jurisdiction.” The laws made by the Government of Canada apply to everyone in Canada. On the other hand, the provinces and territories of Canada have “provincial jurisdiction.” The laws made by those governments apply only within that province or territory. The exact topics that each jurisdiction can make laws about is set out in Canada’s Constitution Act, 1867. Similarly, governments of other countries make laws that generally only apply in their geographic area.

interjurisdictional

This term describes how court orders that are granted in one province, territory, or country may apply in another province, territory, or country.

“foreign” (used to describe laws, jurisdictions, and courts)

Something that is from outside of a certain geographic area. For an Albertan, this generally means something that is from outside of Alberta. For example, a “foreign” law may be from another Canadian province or territory, or it may be from another country. For someone in Ontario, on the other hand, an Alberta law would be a “foreign” law.

conflict of laws provisions

Statements included in laws that say when laws, court decisions, or legal documents from foreign jurisdictions can be used or applied. For example: an Ontario law about Powers of Attorney may say when Powers of Attorney from outside of Ontario will be recognized in Ontario.

resealing (a court order)

The process of having a local court confirm a court order from another jurisdiction.

ordinary residence (also called “habitual residence”)

Where a person lives his or her daily life. This is different from where a person might occasionally stay, or even where a person often stays. It is where a person’s life is centred. Even if they are not always there, it is the place where they regularly return.

When deciding if a person is an “ordinary” or “habitual” resident, a court will consider different factors. These may include:

  • where a person was born;
  • where a person has spent, and continues to spend, most of his or her life; and
  • where a person has ties to family and the community.

spouse

A person who is legally married to another person.

party

Any person involved in a dispute. It can also refer to each of the people who sign a legal document.

personal decisions

All decisions that are not related to money or finances. Examples include:

  • health care and medical treatment;
  • living arrangements (whether permanent or temporary);
  • who you can have contact with;
  • social activities;
  • educational, vocational, or other training;
  • employment; and
  • any legal proceedings not related primarily to money.

financial decisions

Decisions related to anything you can own (including money). This can include:

  • obtaining it;
  • getting rid of it;
  • handling it; or
  • keeping it safe.

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).

supported decision-making

A process that allows an adult to name one or more other adults who will help make and communicate personal decisions. Supported decision-making is intended for people who may need a bit of help from someone they trust when making personal decisions, even though they still have capacity.

co-decision-making

A process that allows an adult to ask the Court to name one or more other people to help make personal decisions. Co-decision-making is intended for people who need more significant help when making personal decisions, even though they still have capacity.

Personal Directive

A document that gives someone else the legal power to make your personal decisions if you ever become unable to make those decisions for yourself. Personal decisions include health-related decisions. In other provinces and countries, this document might have a different name (such as “living will” or “Power of Attorney for Health”).

Maker

A person who signs a Personal Directive. For example: if you sign a Personal Directive that gives your sister the power to make your personal decisions for you, you are called the “Maker.”

Agent

A person who is given the power to make personal decisions for another person through a Personal Directive. For example: if you sign a Personal Directive that gives your brother the power to make your personal decisions for you, your brother is called the “Agent.”

Power of Attorney

A document that gives someone else the right to make financial decisions for you, and to act on your behalf for your financial affairs. This can include paying bills, dealing with your money, and selling your property. There are different kinds of Powers of Attorney:

  • An Immediate Power of Attorney takes effect immediately and ends at a specific date or after a certain decision has been made.
  • An Immediate and Enduring Power of Attorney takes effect immediately and continues if you become unable to make your own financial decisions.
  • An Enduring Power of Attorney (also called a “Springing Power of Attorney”) takes effect only when you become unable to make your own financial decisions.

Donor

A person who signs a Power of Attorney. For example: if you sign a Power of Attorney that gives your sister the power to make your financial decisions for you, you are called the “Donor.”

Attorney

A person who is given the legal power to make financial decisions for another person through a Power of Attorney. For example: if you sign a Power of Attorney that gives your sister the power to make your financial decisions for you, your sister is called the “Attorney.”

Be Aware

This term can also be used to refer to a lawyer (especially in the United States). However, an “Attorney” that is given decision-making power under a Power of Attorney is not the same thing as a lawyer.

to take effect

To start to apply. For example: a contract can be signed on March 15, but the terms of the contract may not start to apply until April 1. In this case, the contract “takes effect” on April 1.

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.

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.

informal trusteeship

This is a less formal way of putting someone else in charge of handling some financial decisions. It is “less” formal because there is no requirement to keep track of and report the decisions that are made, and there is no need to involve the court system. Often it is less time-consuming and less expensive than other legal options (such as applying to the Court for Trusteeship). In general, informal trusteeships are offered at government departments and government-related agencies.

Although they are similar to Powers of Attorney, informal trusteeships do not work in exactly the same way. They do not use a “global” approach, where all types of financial decisions can be covered in one document. Instead, a separate informal trusteeship would need to be set up at every agency or government department that allows for these arrangements.

trustee

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

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 (under the Adult Guardianship and Trusteeship Act)

A person who is legally responsible for making financial decisions for a person who is not able to do so themselves. This does not include being responsible for personal decisions: those are made by the Guardian (see below). The same person can be both the Guardian and the Trustee, but they can also be different people.

A Trustee is similar to an Attorney under a Power of Attorney, but they are different.

  • A Trustee is appointed by a court, as a result of a court application under the Adult Guardianship and Trusteeship Act.
  • An Attorney is appointed by someone who signs a Power of Attorney (a court is not involved).

Guardian (under the Adult Guardianship and Trusteeship Act)

A person who is legally responsible for making decisions about the daily personal needs of an adult who is not able to do so themselves. This includes being responsible for medical decisions. This does not include the power to make financial decisions: those are made by the Trustee (see above). The same person can be both the Guardian and the Trustee, but they can also be different people.

A Guardian is similar to an Agent named in a Personal Directive, but they are different:

  • A Guardian is appointed by a court, as a result of a court application under the Adult Guardianship and Trusteeship Act.
  • An Agent is appointed by someone who signs a Personal Directive (a court is not involved).

the deceased

A person who has died.

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.

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.

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).

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.

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.

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).

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 Wills and Succession Act (and associated Regulations)
Government of Alberta
English
The International Wills Registration System Regulation is included with this Act.

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 Powers of Attorney Act
Government of Alberta
English


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


Web Constitution Acts, 1867 to 1982
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 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. Everyone involved must be kept safe. Abuse can happen even if you live far away from the abuser.

General help

If you have been the victim of domestic violence, 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 Working with a Lawyer Information Pages for more information about your legal options.

If you are dealing with domestic violence across borders, there are places that can help no matter where you are. For more information, see the following resources.

Web Get help with family violence
Government of Canada
English
Web Provincial and Territorial Helplines and Websites
Government of Alberta
English
Interactive Domestic Violence Shelters Search
domesticshelters.org
English

Protection for loved ones “in care”

In Alberta, people who are receiving publicly funded services that support their physical or mental health are protected from abuse under Alberta’s Protection for Persons in Care Act (PPCA).

If you are an Alberta resident with a loved one who is in care in another jurisdiction, you may want to learn about similar protections in that other jurisdiction. If you learn that your loved one is being abused in that facility, you will want to know about the laws of that jurisdiction. You may be required to report the abuse.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Jurisdiction: What is it and why does it matter?

What is jurisdiction?

This term refers to the right or ability of a government or a court to make decisions about things.

In terms of government, “jurisdiction” refers to a particular government’s right, power, or authority to make laws.

  • The Government of Canada has “federal jurisdiction”—the laws made by the Government of Canada generally apply to everyone in Canada.
  • The provinces and territories of Canada have “provincial jurisdiction”—the laws made by those governments generally apply only within that province or territory.

The exact topics that each jurisdiction can make laws about is set out in Canada’s Constitution Act, 1867. Governments cannot make laws about topics that are not in their jurisdiction.

Similarly, governments of other countries make laws that generally only apply in their geographic area.

In terms of the court system, “jurisdiction” is also used to describe a particular court’s authority to deal with an issue. This is related to the governmental jurisdiction:

  • Federal courts (such as the Federal Court of Canada and the Tax Court) deal with the laws passed by the Government of Canada.
  • Alberta courts (the Provincial Court of Alberta and the Alberta Court of Queen’s Bench) have the authority to deal with Alberta laws. But they cannot deal with the laws of another province. In other words, “jurisdiction” is the geographic area where the judge has authority to make court orders.
  • Alberta courts can also deal with laws passed by the Government of Canada, if they have been given the authority to do so. For example: Alberta courts have the authority to deal with the Criminal Code of Canada (which is a federal law).

In general, courts cannot make orders using laws that are not in their jurisdiction, and courts cannot hear a matter about a person who is not in their jurisdiction.

Why does it matter?

A basic concept of law is that, in general, courts can only use the laws that apply in the geographic area where those courts are located. A court in Alberta is meant to apply the laws of Alberta. It cannot simply decide one day to apply the laws of Newfoundland or of the Netherlands to the case it is considering. It has no jurisdiction to do so.

Also, people are governed by the laws in the geographic area where they live. A person who lives in Camrose, Alberta will be governed by Canadian federal laws, Alberta provincial laws, and the city laws passed by the City of Camrose. A person living there cannot simply decide to be governed by the city laws of Moncton, the territorial laws of Yukon, and the federal laws of France instead.

With some family-related legal issues, jurisdiction can complicate things.

For example:

  • A person used to live in Alberta and wrote a Personal Directive in Alberta many years ago. That person now lives in Manitoba. Can the Alberta Personal Directive be honoured and followed in Manitoba?
  • An Albertan dies while away on holiday in the Caribbean. The family is still all in Alberta. How do the family members go about dealing with their loved one’s body? Which country’s laws apply?
  • An Albertan passes away and the family wants to probate her Will. The Will was written in Alberta, and tries to deal with property that is in Ontario and in Germany. Is this possible?
  • Two family members live in Alberta and signed a contract when one lent the other some money. One family member then moves to Prince Edward Island. Which province’s law should be used if there is a dispute about the contract?

More information

For more general information about what jurisdiction is and why it matters, see the Our Legal System Information Page and the following resources.

PDF The Canadian Legal System: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English


Web Canada's Court System
Government of Canada
English

Web Powers of the National and Provincial Governments
Government of Canada
English

Web Distribution of Powers
The Canadian Encyclopedia
English

French resources:


Web L'appareil judiciaire du Canada
Government of Canada
French


Web Partage des pouvoirs
The Canadian Encyclopedia
French
Alberta residency: What is it and why does it matter?

What is “residency”?

In law, there are different ways to determine where a person lives (also called “resides”). Different laws use different methods to decide where a person resides.

The most common way is to look at a person’s “ordinary residence” (sometimes also called “habitual residence”). This is the method used for most of the laws discussed on this Information Page.

In Alberta, and in many other Canadian jurisdictions, “habitual” or “ordinary” residence refers to where a person lives his or her daily life. This is different from where a person might occasionally stay, or even where a person often stays. It is where a person’s life is centred. Even if they are not always there, it is the place where they regularly return.

When deciding if a person is an “ordinary” or “habitual” resident, a court will consider different factors. These may include:

  • where a person was born;
  • where a person has spent, and continues to spend, most of his or her life;
  • where a person’s extended family lives;
  • where a person has social ties to the community;
  • where a person has economic ties to community (such as bank accounts);
  • where a person has a home (and if that home is listed on a driver’s licence and in voter registration);
  • if a person has more than one home, how are they used? (For example, is one home a vacation home?);
  • where a person has property;
  • in which province a person is registered for health care;
  • where a person attends a religious institution; and
  • where a person works.

When it comes to children, factors that can be considered also include:

  • where the child’s roots are;
  • where the child’s extended family lives;
  • where the child has the strongest bonds (such as connections to daycare, school, church, service and health care providers, and community);
  • where the parents/guardians have a home, job, and social life;
  • where there are other court orders already in place;
  • whether there is a difference between court processes that will affect how quickly and inexpensively the issue can be resolved; and
  • whether there is a difference between the laws that will affect the welfare of the child.

In many cases, the issue of where a person is ordinarily resident will be clear. But sometimes it is not as easy to tell. For example: if you have 2 homes in 2 different provinces.

If you are asking a court to determine residency, you can include documents related to the above issues with your court paperwork.

Why does “residency” matter?

As described above in the “Jurisdiction: What is it and why does it matter?” section, Alberta laws do not generally apply to people who do not live (or “reside”) in Alberta. The Alberta Courts generally do not have the authority to make orders for families that live in another jurisdiction, or to make orders about property that is located in another jurisdiction.

When dealing with legal issues across borders (also called “interjurisdictional” issues), you may need to look at the issue of “residency.” In other words, do the people involved usually “reside” in Alberta? Or do they “reside” in another jurisdiction? This can affect how you need to deal with your legal issue.

You may also need to learn about how “residency” is defined in other jurisdictions. For more information about how to find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

More information

For more general information about residency and why it matters, see the following resources.

Web What’s my province of residence?
H&R Block
English
This is a private source. Learn more here.

Web Determining an Individual’s Residence Status
Government of Canada
English
This resource can be a challenge to read. Learn more here.



 

French resources:

Web Détermination du statut de résidence d’un particulier
Government of Canada
French
This resource can be a challenge to read. Learn more here.


“Conflict of laws provisions”: What are they and why do they matter?

What are “conflict of laws provisions”?

These provisions are connected to the issue of jurisdiction. “Jurisdiction” refers to the right or ability of a government or a court to make decisions about things. For example:

  • Governments can generally only make laws that apply in their geographic area.
  • Courts can generally only use the laws that apply where those courts are located.
  • People are generally governed by the laws that apply where they are located. If they live in Alberta, they are governed by Alberta laws. But if they travel abroad, the laws of that country will apply to them while they are there.

However, sometimes legal matters are more complicated. For example:

  • people may have to deal with the laws of more than one jurisdiction at a time;
  • it may unclear which jurisdiction’s laws apply; or
  • governments and courts may want another jurisdiction’s laws to apply.

To deal with these issues, some laws include “conflict of laws provisions.” These are statements included in laws that say when laws, court decisions, or legal documents from foreign jurisdictions can be used or applied. For example: an Ontario law about Powers of Attorney may say when Powers of Attorney from outside of Ontario will be recognized in Ontario.

Why do they matter?

When Albertans are dealing with legal issues across borders, conflict of laws provisions can be helpful in 2 ways:

  • to know if the laws, court decisions, or legal documents from outside of Alberta can be used inside Alberta; and
  • to know if the laws, court decisions, or legal documents from Alberta can be used outside of Alberta.

More information

For more general information about conflict of laws provisions and why they matter, see the following resources.

Web Conflict of Laws
Cornell University Law School
English
This resource is from outside Alberta. Learn more here.

Web conflict of laws
Farlex, Inc.
English
This resource is from a private source outside Alberta. Learn more here.
Owning property together across borders

The term “property” means both:

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

Two or more people owning property together

In Alberta, there are 2 ways for people to “own” property together:

  1. joint tenancy
  2. tenancy in common

Joint tenancy is a special legal concept that results in all of the joint tenants owning all of the property. When 2 people own something in joint tenancy, they both own all of it (not just their “share.”) They each have the right to deal with all of it, any time they want (although sometimes there can be additional legal steps required). For example, if you and your child have a joint bank account, your child has the right to remove all of the money from the account without saying anything to you about it.

If there are 2 joint tenants and one dies, the other joint tenant becomes the sole owner of the property. The property would not pass through the deceased’s Will, even if the deceased wanted it to.

With tenancy in common, 2 or more people own an asset together, but each owns only a portion. For example: land. Under tenancy in common, each of the tenants owns a portion (or share) of the value of the land. Each tenant can only deal with his or her share of the property. Similarly, 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.

Trusts

Another way to hold property that involves more than one person is through a “trust.” A trust is 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 is different from joint tenancy and tenancy in common because the trustee does not “own” the property in the same way. The Trustee has the legal power to make decisions about the property. But it is the beneficiary who truly “owns” the property, including any money made from it.

Using joint ownership and trusts

There are many reasons why family members might want to use the legal tools described above. Some common reasons are:

  • Joint property is a way for one joint tenant to help the other joint tenant with his or her finances and financial decision-making. When people are expecting health issues, it can be an easy way to get “help.”
  • In certain circumstances, trusts can also help with planning for illness and in estate planning.
  • Trusts are also commonly used when property is given to children, because children are too young to hold and manage property themselves.

Property across borders

Joint tenancy, tenancy in common, and trusts are much more complicated when the family members involved live in separate jurisdictions. For example, if a non-U.S. citizen owns U.S. property, there can be serious tax issues. This can be a concern both during their life and after their death, if one of the owners leaves the property to someone.

You may be thinking about using one of these legal tools with:

  • a person who lives outside of Alberta; or
  • property that is outside of Alberta.

Before you do, consider getting the advice of a lawyer and an accountant. If possible, you may wish to talk to experts from both jurisdictions. For information about how to find a lawyer and an accountant, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

For more information, see the following resources. Note that these resources are all from private sources. Learn more here.





PDF Canadian Ownership of US Real Property
BMO Financial Group
English

When you live in Alberta, but your helpers or decision-makers live outside of Alberta

Sometimes, a person who lives in Alberta has no one in Alberta who can help with decision-making or become a substitute decision-maker. This could occur with:

  • supported decision-making;
  • co-decision-making;
  • Personal Directives;
  • Powers of Attorney; or
  • informal trusteeships.

Similarly, there may be no one in Alberta that the Court could appoint as a Guardian or Trustee.

Tip

For information about what these decision-making tools are, see the following resource and the Caring for & Decision-Making for a Family Member Information Page.

PDF Decision-making options brochure
Government of Alberta
Chinese, English, French, German, Punjabi, Spanish, Tagalog, Ukrainian

As a result:

  • the person may want to name someone outside of Alberta to help them with decisions; or
  • the Court may appoint a person who lives outside of Alberta to make decisions for someone who has lost capacity.

In many jurisdictions, this is often possible. However, it can present some challenges.

Naming or appointing helpers or decision-makers who are outside of Alberta

When a person is considering appointing a helper or a decision-maker from another jurisdiction, there are several things to keep in mind.

For example:

  • What time of day will you communicate? This can be tricky if the helper or decision-maker is in a distant time zone.
  • How will communication happen? For example, maybe you choose to communicate by email unless it’s an emergency. What counts as an emergency? What is to be done in an emergency?
  • How will you deal with the helper or decision-maker not being able to “see” things for themselves? For example, do you need to set up a laptop with Skype for certain matters?
  • Will travel be required? How often? How will that be paid for?
  • Will a “bond” need to be posted for financial decision-makers? In this case, a “bond” is money that is paid as a kind of “insurance.” It is meant to help ensure that the decision-maker does not financially harm you. For example, by stealing from you or your estate.

For more information, see the following resources.

PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English
See p. 20.

Web Who should be guardian for your elderly relative?
Estate Law Canada
English
This is a private source. Learn more here.

Web In adult guardianship, what are trustee's undertakings?
Estate Law Canada
English
This is a private source. Learn more here.

Working with helpers or decision-makers who are outside of Alberta

When a helper or decision-maker does not live in the same jurisdiction as the person they are helping, things will be more complicated. It may take extra work and planning. The helper or decision-maker may also need support from another person who does live in the jurisdiction.

Be Aware

A helper or decision-maker cannot give their decision-making powers to someone else. They are still personally responsible for the role they agreed to under the document.

Removing helpers or decision-makers who are outside of Alberta

Sometimes, having a helper or decision-maker who lives in another jurisdiction can be very complicated and frustrating. In such cases, the people involved may want to end the situation. This is possible. However, there are different things to consider, depending on the exact situation.

The problems may be solvable. As a first step, you may wish to try to resolve your issues by talking with the helper or decision-maker. Perhaps there is a misunderstanding that can be cleared up. Perhaps you could fix the problem through mediation. For more information about your options, see the Alternative Dispute Resolution Information Page.

If the person being helped still has capacity, he or she can appoint a new helper or decision-maker. For example: a Co-Decision Maker lives in another province. As long as the Assisted Adult still has capacity, he or she can change the situation. However, that would be the decision of the Assisted Adult. Loved ones cannot force or trick the Assisted Adult into making that decision. For more information see the Caring for & Decision-Making for a Family Member Information Page.

The helper or decision-maker can resign if they wish. Before doing so, they will want to consider many things. For example:

  • What are the requirements for resigning? For example: Do they have to resign in writing? Do they have to get the permission of a court?
  • Are their records are completely in order?
  • How will this decision affect the person they are helping?
  • Is another helper or decision-maker named in the document, or can another still be appointed?
  • If they resign, will someone else need to apply to a court for Guardianship or Trusteeship?

Once the person being helped has lost capacity, the process to remove the decision-maker will depend on the jurisdiction. For example, if the document that appointed the person as a decision-maker was written:

  • in Alberta, by a person who still lives in Alberta, the issue will most likely be resolved by Alberta laws and Alberta courts.
  • outside of Alberta, by a person who still lives in that other jurisdiction, the issue will most likely be resolved by the laws and courts of that other jurisdiction.

In some cases, it will not be clear which jurisdiction has power over the issue. You may want to get the advice of a lawyer (possibly one from each jurisdiction, or one that practices in both jurisdictions). For more information, see the Working with a Lawyer Information Page. For other legal resources in your Alberta community that may be able to help, see the Community Legal Resources & Legal Aid Information Page.

Be Aware

In such cases, distance alone is not enough reason to remove the decision-maker. In general, to remove a decision-maker, it must be shown that the decision-maker is not properly doing the job, or is harming the person they are supposed to be helping. Just being “far away” is not enough.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Albertans helping or making decisions for someone outside of Alberta

Sometimes, a person who lives outside of Alberta has no one in their jurisdiction who can help with decision-making or become a substitute decision-maker. For example, this could occur with:

  • something like Alberta’s supported decision-making;
  • something like Alberta’s co-decision-making;
  • Personal Directives (which may be called something different in the other jurisdiction);
  • Powers of Attorney; or
  • informal trusteeships.

Similarly, there may be no one in that other jurisdiction that a court could appoint as a Guardian or Trustee.

As a result:

  • that person may want to name someone in Alberta to help them with decisions; or
  • a court may appoint a person who lives in Alberta to make decisions for someone who has lost capacity.

Is it possible?

In many jurisdictions, it is possible to name someone from outside the jurisdiction to help with decision-making, or be a substitute decision-maker. The exact requirements will depend on the laws of that foreign jurisdiction.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

The challenges

Being a helper or decision-maker for someone who lives in a different jurisdiction can be challenging, and things will be more complicated. It may take extra work and planning.

For example:

  • What time of day will you communicate? This can be tricky if you live in distant time zones.
  • How will communication happen? For example, maybe you choose to communicate by email unless it’s an emergency. What counts as an emergency? What is to be done in an emergency?
  • How will you deal with not being able to “see” things for yourself? For example, do you need to set up a laptop with Skype for certain matters?
  • Will travel be required? How often? How will that be paid for?
  • Will a “bond” need to be posted for financial decision-makers? In this case, a “bond” is money that is paid as a kind of “insurance.” It is meant to help ensure that the decision-maker does not financially harm the person they are helping. For example, by stealing from the person or their estate.

Sometimes, being in a separate jurisdiction from the person you are helping can be very complicated and frustrating. In such cases, you may want to end the situation. This is possible. However, there are different things to consider, depending on the exact situation.

The problems may be solvable. As a first step, you may wish to try to resolve your issues by talking with loved ones or caregivers of the person you are helping. Perhaps there is a misunderstanding that can be cleared up. Perhaps you could fix the problem through mediation. For more information about your options, see the Alternative Dispute Resolution Information Page.

If the person being helped still has capacity, he or she can appoint a new helper or decision-maker. For example: you have the equivalent of a Co-Decision-Making Order. As long as the person you are helping still has capacity, he or she can change the situation. However, that would be their decision. Loved ones cannot force or trick that person into making that decision.

You can resign if you wish. Before doing so, you will want to consider many things. For example:

  • What are the requirements for resigning? For example: Do you have to resign in writing? Do you have to get the permission of a court?
  • Are your records are completely in order?
  • How will this decision affect the person you are helping?
  • Is another helper or decision-maker named in the document, or can another still be appointed?
  • If you resign, will someone else need to apply to a court for Guardianship or Trusteeship?
Supported Decision-Making Authorizations across borders

Remember that “jurisdiction” refers to the right or ability of a government or a court to make laws and decisions about things in a particular geographic area. In general:

  • Governments can only make laws that apply in their geographic area.
  • Courts can only use the laws that apply where those courts are located.
  • People are governed by the laws that apply where they are located.

“Supported decision-making” is an option in Alberta that allows people to get a bit of help with personal decision-making. Supported Decision-Making Authorizations are for people who have not yet lost capacity, but have diminished capacity. For more information about supported decision-making and capacity, see the Planning for Illness Information Page.

Not all jurisdictions have supported decision-making (or even anything similar). If a foreign jurisdiction does have something similar, the requirements for setting up a similar arrangement may be completely different. Also, the power given to the “helper” may be different.

As a result:

  • A person with a Supported Decision-Making Authorization from Alberta may find that it is not “recognized” in another jurisdiction. This means that the arrangement may not apply in that other jurisdiction, and may not be enforced by the courts there.
  • A person with a Supported Decision-Making Authorization from Alberta may spend a lot of time in another jurisdiction. However, they may not be able to have a similar arrangement in that other jurisdiction.
  • A person with a similar arrangement from a foreign jurisdiction may find that they cannot use that document in Alberta.

To deal with these issues, some laws include “conflict of laws provisions.” These state when laws, documents, or court decisions from one jurisdiction can be used in another jurisdiction. For more information about these provisions, see the “Conflict of laws provisions” section above.

The Alberta Adult Guardianship and Trusteeship Act does not have any conflict of laws provisions about Supported Decision-Making Authorizations. In other words, Alberta law does not say when it will recognize foreign documents that are similar to our Supported Decision-Making Authorizations. As a result:

  • if you have signed something similar to a Supported Decision-Making Authorization outside of Alberta, it may not be recognized in Alberta; and
  • you may need to sign a Supported Decision-Making Authorization in Alberta.

For information about how to do that, see the Planning for Illness Information Page.

However, laws in other jurisdictions might have conflict of law provisions about these arrangements. In other words, those foreign laws might say when they will recognize a Supported Decision-Making Authorization from Alberta. As a result, if you have signed a Supported Decision-Making Authorization in Alberta:

  • you may be able to use it in certain jurisdictions outside of Alberta; or
  • you may not be able to use it outside of Alberta. If that occurs, find out what your options are in that other jurisdiction and consider completing whatever paperwork is required there.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Co-decision-making across borders

Remember that “jurisdiction” refers to the right or ability of a government or a court to make laws and decisions about things in a particular geographic area. In general:

  • Governments can only make laws that apply in their geographic area.
  • Courts can only use the laws that apply where those courts are located.
  • People are governed by the laws that apply where they are located.

“Co-decision-making” is an option in Alberta for getting help with personal decision-making. Co-Decision-Making Orders are for people who have not yet lost capacity, but have diminished capacity. For more information about co-decision-making and capacity, see the Planning for Illness Information Page.

Not all jurisdictions have co-decision-making (or even anything similar). If a foreign jurisdiction does have something similar, the requirements for setting up a similar arrangement may be completely different. Also, the power given to the “helper” may be different.

As a result:

  • A person with an Alberta Co-Decision-Making Order may find that it is not “recognized” in another jurisdiction. This means that the Order may not apply in that other jurisdiction, and may not be enforced by the courts there.
  • A person with something similar to a Co-Decision-Making Order from outside of Alberta may find that their document is not “recognized” here.

To deal with these issues, some laws include “conflict of law provisions.” These state when laws, documents, or court decisions from one jurisdiction can be used in another jurisdiction. For more information about these provisions, see the “Conflict of laws provisions” section above.

With co-decision-making, conflict of laws provisions can be helpful in 2 ways:

  • to know if Co-Decision-Making Orders (or their equivalents) from outside Alberta can be used in Alberta; and
  • to know if Alberta Co-Decision-Making Orders can be used outside of Alberta.

Co-decision-making: Using non-Alberta Orders inside Alberta

Sometimes, people need to use a non-Alberta equivalent of a Co-Decision-Making Order in Alberta. For example: an Assisted Adult may be visiting Alberta when he or she falls and must go to the hospital. Hospital staff will need to know if there is a Co-Decision-Maker.

Alberta’s Adult Guardianship and Trusteeship Act (AGTA) says when the equivalents of Co-Decision-Making Orders from other jurisdictions can be used in Alberta. Specifically, section 73 of the AGTA says that an order from outside of Alberta (which is called a “foreign order”) can be “resealed” in Alberta. “Resealing” is the process of having a local court confirm a court order from another jurisdiction.

To be resealed in Alberta, a foreign Co-Decision-Making Order must meet all of the following requirements.

  • the Order appoints a person who has duties that are similar to those of a Co-Decision-Maker under the AGTA;
  • the Order is about a person who is at least 18 years old;
  • the Order must be from another province or territory of Canada, or from a jurisdiction outside Canada that has been approved by the Lieutenant Governor in Council; and
  • the Order must include a certificate issued by an officer of the court or body that issued the foreign order, which states that the Order has not been revoked and is still in full effect.

Once the Co-Decision-Making Order has been resealed by the Alberta Court of Queen’s Bench, that Order is:

  • treated as if it were issued by the Alberta Court; and
  • subject to appeal and review just like an Alberta Co-Decision-Making Order.

For information about how to apply to reseal a foreign Co-Decision-Making Order, see the Process tab of this Information Page.

Co-decision-making: Using an Alberta Order outside of Alberta

Not all jurisdictions allow co-decision-making. As a result, your Co-Decision-Making Order may not be recognized in another jurisdiction.

If the other jurisdiction does have a legal option similar to co-decision-making, you will want to look at what the foreign law says about recognizing similar foreign orders (the “conflict of laws provisions”). Depending on what the foreign law says, you may be able to take steps to have the Alberta Co-Decision-Making Order recognized and accepted in that other jurisdiction.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Informal trusteeships across borders

Informal trusteeships are a way of putting someone else in charge of handling some financial decisions. Although they are similar to Powers of Attorney (see the “What the words mean” section above), informal trusteeships do not work in exactly the same way. There is no law that says that the Informal Trustee must keep track of and report the decisions that are made. Also, informal trusteeships do not use a “global” approach, where all types of financial decisions can be covered in one document. Instead, a separate informal trusteeship would need to be set up at every agency or government department that allows for these arrangements.

Informal trusteeships are intended for people who have lost capacity. However, informal trusteeships are sometimes used by people who have diminished capacity to get help with their financial issues. For more information about informal trusteeships and capacity, see the Planning for Illness Information Page.

Not all jurisdictions allow informal trusteeships. Some jurisdictions might have no similar options. Other jurisdictions might have financial decision-making options that are more similar to Alberta’s supported decision-making and co-decision-making options, which in Alberta are only for personal decision-making.

If you or your loved one have property in a jurisdiction outside of Alberta, you may wish to set up something similar to an informal trusteeship. To do so, you will need to research the laws of that other jurisdiction to find out:

  • whether that jurisdiction allows informal trusteeships;
  • what other similar options there may be and how to make such arrangements; and
  • whether a person who lives in Alberta could be named as the Informal Trustee (or its equivalent).

For information about where to find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page .

Powers of Attorney and Personal Directives across borders: An introduction

Remember that “jurisdiction” refers to the right or ability of a government or a court to make laws and decisions about things in a particular geographic area. In general:

  • Governments can only make laws that apply in their geographic area.
  • Courts can only use the laws that apply where those courts are located.
  • People are governed by the laws that apply where they are located.

As a result, a person who completed a Power of Attorney or a Personal Directive in Alberta may find that their document is not “recognized” in another jurisdiction. This means that the document may not be used in that other jurisdiction, or enforced by the courts there. Or, a person who completed something similar to a Power of Attorney or a Personal Directive outside of Alberta may find that their document is not “recognized” in Alberta.

To deal with such issues, some laws include “conflict of law provisions.” These state when laws, documents, or court decisions from one jurisdiction can be used in another jurisdiction. For more information about these provisions, see the “Conflict of laws provisions” section above.

With Powers of Attorney and Personal Directives, conflict of law provisions can be helpful in 2 ways:

  • to know if Powers of Attorney and Personal Directives (or their equivalents) from outside Alberta can be used in Alberta; and
  • to know if Alberta Powers of Attorney and Personal Directives can be used outside of Alberta.

These 2 topics are discussed in the next 2 sections.

For more information about the problem of Powers of Attorney and Personal Directives across jurisdictions, see the following resources.


PDF Personal Directives Information Package
Turning Point Law
English
This is a private source. Learn more here. See p. 5.

Presentation Aging and the Law Series: Inter-jurisdictional Issues
Canadian Centre for Elder Law
English

Web Power of attorney protection breaks down across borders
Thomson Reuters
English
This is a private source. Learn more here.

Web Snowbird Savvy - Are your Ontario Powers of Attorney valid everywhere?
Nelligan O'Brien Payne LLP
English
This resource is from a private source outside Alberta. Learn more here.
Powers of Attorney and Personal Directives: Using non-Alberta documents inside Alberta

Sometimes, people may need to use a non-Alberta Power of Attorney or Personal Directive inside Alberta. For example:

  • A person moved here from another jurisdiction and lost capacity. That person still has a valid Power of Attorney or Personal Directive from that other jurisdiction, and they never made new equivalent documents in Alberta.
  • A person came to Alberta for a visit and lost capacity. They are now in the hospital. That person has a valid Power of Attorney or Personal Directive from the jurisdiction in which they live. They did not make any documents for Alberta, as they only expected to be here for a short visit.

In Alberta, both the Powers of Attorney Act and the Personal Directives Act say when Powers of Attorney and Personal Directives from other jurisdictions can be used in Alberta. However, the rules for each document are different from each other.

Powers of Attorney

Alberta’s Powers of Attorney Act allows Alberta to recognize a foreign Power of Attorney, as long as:

  • the document is a valid Power of Attorney in the jurisdiction in which it was created; and
  • the Attorney’s powers have not been ended by the Donor having become incapacitated since the document was signed. In other words, the document is one that remains in effect after the Donor has lost capacity, such as an Enduring Power of Attorney.

For example:

  • A Donor signed the equivalent of an Power of Attorney in Thailand.
  • She then came to Alberta and lost capacity.
  • The document will be recognized in Alberta if 2 conditions are met. First, all of the Thai legal requirements were met when the document was signed. Second, it is the kind of Power of Attorney that continues when the Donor loses capacity.

The same would be true if the Power of Attorney were from any other jurisdiction, both inside Canada and outside Canada.

Personal Directives

The Personal Directives Act works slightly differently. Under that Act, a Personal Directive (or its equivalent) that is made outside of Alberta will be recognized in Alberta as long as it meets all of the requirements of Alberta’s Personal Directives Act.

For example:

  • A Maker signed the equivalent of a Personal Directive in Thailand.
  • There was no witness when the document was signed in Thailand.
  • She then came to Alberta and lost capacity.
  • To be recognized in Alberta, the document must meet legal requirements in Thailand and the requirements of Alberta’s Personal Directives Act.
  • The Alberta Personal Directives Act states that a Personal Directive must be signed in front of at least one witness, and that that witness also signs the document.
  • The document would not be recognized in Alberta.

The same would be true if the document was from any other jurisdiction, both inside Canada and outside Canada.

For detailed information about the requirements for an Alberta Personal Directive, see the Planning for Illness Information Page.

Issues with having documents accepted

Even though the law allows certain non-Alberta Powers of Attorney and Personal Directives to be recognized, you could still have problems with people or organizations accepting them. They may not know what the law says.

As a result, you may have to:

  • get the documents translated into English; and
  • get a letter or a Statutory Declaration from a lawyer, which states that the requirements of Alberta laws have been met. A “Statutory Declaration” is a written and sworn statement of fact. It is often used outside of courts to allow a person to declare something to be true. It is a way to satisfy some legal requirement when no other evidence is available.
Tip

Completing these steps may take some time. During that time, you may not be able to use the Power of Attorney and/or Personal Directive. You could take these steps before you actually need to use the documents. Or, if possible, you can create new documents for Alberta. For more information about making these documents in Alberta, see the Planning for Illness Information Page.

Powers of Attorney and Personal Directives: Using Alberta documents outside of Alberta

If you have made a valid Alberta Personal Directive or Power of Attorney, you may one day want, or need, to use it outside of Alberta. Unfortunately, your documents may not be “recognized” in that another jurisdiction. This means that the documents may not apply in that other jurisdiction, and may not be enforced by the courts there.

If you want to use your Alberta documents outside of Alberta, you will want to look at what that jurisdiction’s law says about recognizing foreign documents (the “conflict of laws provisions”). Depending on what the law says, you may be able to take steps to have the Alberta documents recognized and accepted in that other jurisdiction.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Powers of Attorney and Personal Directives: Making documents that can be used outside of Alberta

The law in every jurisdiction is different. Some laws state how Personal Directives and Powers of Attorney from other jurisdictions will be treated, but some do not. This can complicate things if you:

  • travel often;
  • own property outside of Alberta; and/or
  • work outside of Alberta.

In any case, Albertans can plan for it.

Although you cannot complete a Power of Attorney or a Personal Directive for every jurisdiction you visit, there are times when it is worth the effort. For example:

  • perhaps you spend every winter in Arizona;
  • perhaps your company has an office in Tokyo and you often work there;or
  • perhaps you often visit British Columbia, already have a cabin there, and are thinking of retiring there.

If you spend a lot of time in another jurisdiction, and/or own property in that other jurisdiction, it is a good idea to have documents that are valid in that other jurisdiction.

Depending on your needs and the jurisdiction in question, there are 2 main ways that you can approach this problem:

  1. Create a Power of Attorney and Personal Directive that will apply in Alberta and in another jurisdiction.
  2. Create separate documents for each jurisdiction.

Option 1: Creating a Power of Attorney and Personal Directive that will apply in Alberta and in another jurisdiction

It may be possible to create a document that will be valid in both jurisdictions. This will depend on your circumstances and the legal requirements of the jurisdictions involved.
 

Know the laws

As a starting point, you will want to know whether the laws in the other jurisdiction have conflict of laws provisions. You will need to know:

  • If the other jurisdiction states that foreign documents are usable there as long as the requirements of the foreign jurisdiction were met. In this case, Alberta’s requirements would need to be met.
  • Or, if the other jurisdiction demands that its own requirements be met.

If your document must meet the requirements of that other law, you will need to learn about what that jurisdiction’s law says. The requirements to create Powers of Attorney and Personal Directives can vary greatly between jurisdictions. So can the names of the documents, the kinds of topics they can cover, and the powers they can give.

For example:

  • In British Columbia, a Personal Directive is called a Representation Agreement. In Ontario, it is called a Power of Attorney for Health. In Manitoba, it is called a Health Care Directive. Other jurisdictions may call it a Living Will.
  • In some jurisdictions, documents similar to a Personal Directive only give a person the power to make health care decisions. In Alberta, an Agent appointed under a Personal Directive can make many kinds of personal decisions, not just those related to health care.
  • Some European countries allow for the maker of a document similar to a Personal Directive to give instructions about doctor-assisted death. This is not possible in other jurisdictions.
  • In order to create a valid Power of Attorney, some jurisdictions require one witness. Some require 2 witnesses.
  • Some jurisdictions have extra requirements if an Attorney (or its equivalent) will deal with “real property” (such as land or a house). Others do not have extra requirements for this.

If your Power of Attorney and Personal Directive are not valid in that other jurisdiction, family or loved ones might have to apply for Guardianship and/or Trusteeship (or their equivalents) in that other jurisdiction. This can add a lot of stress and cost to an already difficult situation.

Be Aware

Powers of Attorney and Personal Directives are separate documents in Alberta. Therefore, even if you are trying to create documents that will be valid in both Alberta and another jurisdiction, they should not be mixed into one document. The document to deal with your financial issues (Power of Attorney) should be separate from the document to deal with your personal issues (Personal Directive).

For more information about making documents that are valid in multiple jurisdictions, see the following resources.


Web Snowbird Savvy - Are your Ontario Powers of Attorney valid everywhere?
Nelligan O'Brien Payne LLP
English
This resource is from a private source outside Alberta. Learn more here.

To find non-Alberta legal information to help you write documents that are valid outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.
 

Issues with having documents accepted

Even though the law sets out such rules about foreign documents, you could still have problems with people or organizations accepting them. They may not know what the law says.

As a result, you may have to:

  • get the document translated; and
  • get a letter or a Statutory Declaration from a lawyer, which states that the requirements of the other jurisdiction’s laws have been meet. A “Statutory Declaration” is a written and sworn statement of fact. It is often used outside of courts to allow a person to declare something to be true. It is a way to satisfy some legal requirement when no other evidence is available.
Tip

Completing these steps may take some time. During that time, you may not be able to use the Power of Attorney and/or Personal Directive. You could take these steps before you actually need to use the documents.

Creating documents that are valid in multiple jurisdictions is complicated. You may want to get the advice of a lawyer (possibly one from each jurisdiction, or one that practices in both jurisdictions). For more information, see the Working with a Lawyer Information Page. For other legal resources in your Alberta community that may be able to help, see the Community Legal Resources & Legal Aid Information Page.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Option 2: Creating separate documents for each jurisdiction

You may also wish to consider creating separate documents in each jurisdiction. In other words, you could create a Power of Attorney in Alberta and another Power of Attorney (or its equivalent) in the other jurisdiction. Similarly, you could create a Personal Directive in Alberta and another Personal Directive (or its equivalent) in the other jurisdiction.

If you do this, there are many things to keep in mind. For example:

  • Have you met all of the legal requirements from each jurisdiction?
  • Have you addressed all of the “powers” you want to include, and only include powers that are allowed under each law?
  • Have you fully explained when each document applies?
  • Are you certain that one document does not “revoke” the other?

For detailed information about creating Alberta Powers of Attorney and Personal Directives, see the Planning for Illness Information Page.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

To create these documents, you may want to get the advice of a lawyer (possibly one from each jurisdiction, or one that practices in all of the jurisdictions). For more information, see the Working with a Lawyer Information Page. For other legal resources in your Alberta community that may be able to help, see the Community Legal Resources & Legal Aid Information Page.

For more information about making separate documents for separate jurisdictions, see the following resources.

Web Mobilize Your Incapacity Planning Across Borders
O'Sullivan Estate Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Web Why Clients May Need Multiple Cross-Border POAs
Advisor Group
English
This resource is from a private source outside Alberta. Learn more here.


Web Snowbird Savvy - Are your Ontario Powers of Attorney valid everywhere?
Nelligan O'Brien Payne LLP
English
This resource is from a private source outside Alberta. Learn more here.
Powers of Attorney and Personal Directives: Can international treaties help?

Sometimes, countries create international treaties that allow for documents or court orders from one country to be recognized in other countries. This has occurred for things like Powers of Attorney and Personal Directives. The Hague Convention of 13 January 2000 on the International Protection of Adults (the “Convention”) states that documents related to an adult without capacity can be recognized in countries other than the one in which they were created.

However, the Convention only applies in countries that have “ratified” it. This means that countries must have officially approved it by signing it or voting for it.

As of June 2016, neither Canada nor the United States have ratified the agreement. This can change at any time. For a current list of countries that have ratified the Convention, see the following resource.

PDF Convention of 13 January 2000 on the International Protection of Adults (available in Chinese, Dutch, English, and German)
Hague Conference on Private International Law
Chinese, English, German
See “Status table” on the right of the page.

Also, the Convention has rules to decide which country will have the authority to deal with these issues. In general, the authority is given to the country where the person without capacity is “habitually resident.” However, the Convention also states that the authority can be given to the country that has “been chosen in writing by the adult to take measures directed to his or her protection.” This means that, a person who is in this situation and who has made an Alberta Personal Directive or Power of Attorney, will be viewed as having chosen Alberta law, and that choice will be honoured.

The Convention will not often apply to Albertans who want to use Alberta Powers of Attorney or Personal Directives outside of Alberta. For the Convention to apply, the Albertan would have to be “habitually resident” in a country that has signed the Convention.

Be Aware

The Convention does not define what “habitually resident” means.

For example:

  • An Albertan completed an Power of Attorney and Personal Directive in Alberta.
  • That person has lived in France for the last 3 years.
  • That person has not signed any French equivalents of a Power of Attorney or Personal Directive.
  • That person loses capacity while in France.
  • Because France has ratified the Convention, the Convention could apply.

Even though this international treaty exists, you could still have problems with people or organizations not recognizing your foreign document. They may not know about the Convention, or be certain that you meet the requirements. As a result, you may have to take some additional steps.

The Convention states that documents will have to be “declared” enforceable or registered for enforcement by a “simple and rapid procedure.” To find out what is required in your country, you will have to contact the “Central Authority.” Each country that has ratified the Convention is required to have a Central Authority. The Central Authority is the main point of contact for these matters. To find the Central Authority of a country that has signed the Convention, see the Process tab of this Information Page.

Tip

Completing these steps may take some time. During that time you may not be able to use the Power of Attorney and/or Personal Directive. You could take these steps before you actually need to use the documents. Or, you can create separate documents for the other jurisdiction. To find non-Alberta legal information to help you write documents that are valid outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Be Aware

Under the Convention, if the local law or public policy does not allow for a particular kind of decision or action, it may not be permitted. This is true even if something is allowed in the country where the document was signed.

For more information about the Hague Convention, see the following resources.

PDF Convention of 13 January 2000 on the International Protection of Adults (available in Chinese, Dutch, English, and German)
Hague Conference on Private International Law
Chinese, English, German
This document is also available in Chinese, Dutch, and German. Click on "Translations" on the right of the page to find these.

PDF The Hague Convention of 13 January 2000 on the International Protection of Adults
European Parliament
English
This resource can be a challenge to read. Learn more here.

Web The 2000 Hague Convention on the International Protection of Adults five years on
Lexology
English
This resource can be a challenge to read. Learn more here.

PDF An Analysis of the Convention on the International Protection of Adults
Aimee R. Fagan
English
This resource can be a challenge to read. Learn more here.


PDF Powers of Attorney
Singleton Urquhart LLP
English
This resource is from a private source outside of Alberta, and can be a challenge to read. Learn more here. See p. 5-6.
Guardianship & Trusteeship Orders across borders: An introduction

Guardianship Orders and Trusteeship Orders are used in Alberta to allow loved ones to make decisions for an adult who has lost capacity. These Orders are needed if there was no Personal Directive or Power of Attorney in place before the adult lost capacity. For detailed information about Guardianship and Trusteeship, see the Caring for & Decision-Making for a Family Member Information Page.

Remember that “jurisdiction” refers to the right or ability of a government or a court to make laws and decisions about things in a particular geographic area. In general:

  • Governments can only make laws that apply in their geographic area.
  • Courts can only use the laws that apply where those courts are located.
  • People are governed by the laws that apply where they are located.

As a result:

  • A Guardianship Order or Trusteeship Order that was granted in Alberta may not be “recognized” in another jurisdiction. This means that the Order may not apply in that other jurisdiction, and may not be enforced by the courts there.
  • Or, the equivalent of a Guardianship Order or Trusteeship Order that was granted outside of Alberta may not be “recognized” here.

To deal with these issues, some laws include “conflict of laws provisions.” These state when laws, documents, or court decisions from one jurisdiction can be used in another jurisdiction. For more information about these provisions, see the “Conflict of laws provisions” section above.

With Guardianship Orders and Trusteeship Orders, conflict of laws provisions can be helpful in 2 ways:

  • to know if Guardianship and Trusteeship Orders (or their equivalents) from outside Alberta can be used in Alberta; and
  • to know if Alberta Guardianship and Trusteeship Orders can be used outside of Alberta.

These 2 topics are discussed in the next 2 sections.

Guardianship & Trusteeship: Using non-Alberta Orders inside Alberta

Sometimes, people need to use a non-Alberta Guardianship Order or Trusteeship Order in Alberta. For example:

  • A person who is the subject of a Guardianship/Trusteeship Order from another jurisdiction has moved here with their Guardian/Trustee. The Guardian/Trustee would prefer not to apply for new Guardianship and Trusteeship Orders in Alberta.
  • A person who is the subject of a Guardianship Order from another jurisdiction came to Alberta with their Guardian for a visit. The person has now become ill and is in the hospital. The hospital will want to know who to take direction from.
  • A person who is the subject of a Trusteeship Order from another jurisdiction has property in Alberta. The Trustee would like to deal with that property, but would prefer not to have to apply for a new Trusteeship Order in Alberta.

Alberta’s Adult Guardianship and Trusteeship Act (AGTA) states when Guardianship Orders and Trusteeship Orders from other jurisdictions can be used in Alberta. Section 73 of the AGTA says that an order from outside of Alberta (which is called a “foreign order”) can be “resealed” in Alberta. “Resealing” is the process of having a local court confirm a court order from another jurisdiction.

To be resealed in Alberta, a foreign Guardianship/Trusteeship Order must meet all of the following requirements.

  • the Order appoints a person who has duties that are similar to those of a Guardian or Trustee under the AGTA;
  • the Order is about a person who is at least 18 years old (or that person’s property);
  • the Order must be from another province or territory of Canada, or from a jurisdiction outside Canada that has been approved by the Lieutenant Governor in Council; and
  • the Order must include a certificate issued by an officer of the court or body that issued the foreign order, which states that the Order has not been revoked and is still in full effect.

Also, if a Trusteeship Order is being resealed, the applicant might have to provide a “bond” or other security to the Court. In this case, a bond is money that is paid as a kind of insurance. It is meant to help ensure that you will not be financially harmed if the Trustee steals from you.

Once the Guardianship/Trusteeship Order has been resealed by the Alberta Court of Queen’s Bench, that Order is:

  • treated the same as if it were issued by the Alberta Court; and
  • subject to appeal and review just like an Alberta Guardianship or Trusteeship Order.

For information about how to apply to reseal a foreign Guardianship Order or Trusteeship Order, see the Process tab of this Information Page.

Guardianship & Trusteeship: Using Alberta Orders outside of Alberta

Sometimes, people need to use an Alberta Guardianship Order or Trusteeship Order outside of Alberta. For example:

  • A person who is the subject of an Alberta Guardianship/Trusteeship Order has moved to another jurisdiction with their Guardian/Trustee. The Guardian/Trustee would prefer not to apply for new Guardianship/Trusteeship Orders in that new jurisdiction.
  • A person who is the subject of an Alberta Guardianship Order is visiting another jurisdiction with their Guardian. The person has now become ill and is in the hospital in the other jurisdiction. The hospital will want to know who to take direction from.
  • A person who is the subject of an Alberta Trusteeship Order has property in another jurisdiction. The Trustee would like to deal with that property, but would prefer not to apply for a new Trusteeship Order in that other jurisdiction.

The other jurisdiction may have “conflict of laws provisions” that say when foreign Guardianship or Trusteeship Orders can be used in their jurisdiction. For example, they may have rules about “resealing,” just like Alberta does.

To learn if it is possible to use an Alberta Guardianship Order or Trusteeship Order in another jurisdiction, you will need to learn about the legal requirements of that jurisdiction. You may also want to get the advice of a lawyer (possibly one from each jurisdiction, or one that practices in both jurisdictions). To find non-Alberta legal information and out-of-province lawyers, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Guardianship & Trusteeship: Can international treaties help?

Sometimes, countries create international treaties that allow for documents or court orders from one country to be recognized in other countries. This has occurred for things like Guardianship Orders and Trusteeship Orders. Specifically, the Hague Convention of 13 January 2000 on the International Protection of Adults (the “Convention”) states that court orders related to an adult without capacity can be recognized in countries other than the one in which they were created.

However, the Convention only applies in countries that have “ratified” it. This means that countries must have officially approved it by signing it or voting for it.

As of June 2016, neither Canada nor the United States have ratified the agreement. This can change at any time. For a current list of countries that have ratified the Convention, see the following resource.

PDF Convention of 13 January 2000 on the International Protection of Adults (available in Chinese, Dutch, English, and German)
Hague Conference on Private International Law
Chinese, English, German
See “Status table” on the right of the page.

Also, the Convention has rules to decide which country will have the authority to deal with these issues. In general, the authority is given to the country where the person without capacity is “habitually resident.” However, the Convention also states that the authority can be given to the country where the adult “is a national,” or the country that was the “preceding habitual residence of the adult.”

Be Aware

The Convention does not define what “habitually resident” means.

Therefore, the Convention will not often apply to Albertans trying to use an Alberta Guardianship Order and/or Trusteeship Order outside of Alberta. For the Convention to apply, the Albertan would have to be “habitually resident” in a country that has signed the Convention. It would be very rare for an Albertan who is the subject of a Guardianship Order or Trusteeship Order to find themselves habitually resident of a country that has ratified the Convention.

For more information about the Hague Convention, see the following resources.

PDF Convention of 13 January 2000 on the International Protection of Adults (available in Chinese, Dutch, English, and German)
Hague Conference on Private International Law
Chinese, English, German
This document is also available in Chinese, Dutch, and German. Click on "Translations" on the right of the page to find these.

PDF The Hague Convention of 13 January 2000 on the International Protection of Adults
European Parliament
English
This resource can be a challenge to read. Learn more here.
Getting Guardianship & Trusteeship Orders for an Albertan who is temporarily outside of Alberta

Sometimes, an Alberta resident may be outside of the province for a short time when they lose capacity. For example, they could become ill or be in an accident.

If the person has pre-planned for such an event, their Personal Directive and Enduring Power of Attorney would come into effect. For information about using Personal Directives and Enduring Powers of Attorney across borders, see the “Powers of Attorney and Personal Directives” sections above.

If the person has not pre-planned for such an event, their family and loved ones may need a court order for Guardianship and/or Trusteeship. Without such an order, they may not be able to make decisions for their loved one. Depending on the circumstances, this might mean they cannot even get that person back to Alberta.

For example:

  • An Alberta resident goes to visit their adult child in Ontario.
  • While in Ontario, the Alberta resident loses capacity.
  • The Alberta resident does not have a Personal Directive or Power of Attorney (or any similar documents from Ontario).
  • The adult child in Ontario now wants the parent from Alberta to stay in Ontario.
  • Another adult child, who lives in Alberta, wants the parent to be brought back to Alberta.
  • Authorities in Ontario will want to know which adult child they should take direction from.

This kind of situation is complex. Depending on the circumstances, it might make the most sense to get Guardianship and/or Trusteeship in Alberta and have the order resealed in Ontario. Or, it might be better to involve the Ontario courts.

If you are in this situation, you may want to get legal advice so that you can do what is best in your particular circumstance.

Driving in other jurisdictions

As you age and/or become ill, you may no longer be able to drive, or be allowed to drive. Many people do not think of this possibility and are unprepared when it happens.

Each jurisdiction has different rules about monitoring drivers’ skills, safety records, and medical conditions. If you spend a lot of time in another jurisdiction, you will want to be aware of the laws about these topics.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Housing in other jurisdictions

Each jurisdiction has a different approach to housing for older people or people with disabilities or illnesses. If you plan to move to another jurisdiction, or are helping a loved one who is in another jurisdiction, you may need to learn more about this topic.

For information about seniors housing across Canada, see the following resources.

Web Senior Housing Laws & Regulations in Canada
A Place for Mom
English
This is a private source. Learn more here.



PDF Research Report: Supportive Housing for Seniors
Government of Canada
English


PDF Seniors' Housing
Government of Canada
English

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Government benefits and assistance in other jurisdictions

Each jurisdiction has unique benefit programs.

For more information about benefits in Canada, contact your provincial or territorial government and see the following resources.

Interactive Benefits Finder
Government of Canada
English

Interactive Chercheur de prestations
Government of Canada
French


People who are citizens of other countries may be entitled to pensions and other benefits from their country even though they live here now. For more information, contact your embassy.

Web Foreign Representatives in Canada
Government of Canada
English

Web Représentants étrangers au Canada
Government of Canada
French
Estate planning if you have property outside of Alberta

Some people think about “estate planning” as simply having a Will. But it is much more than that. Estate planning is the process of thinking about and making plans for what should happen to your property in case you become ill and after you die.

If you become ill, the people who take care of you and make decisions for you may have to deal with your property. This can include managing the property. It might even involve using or selling the property to have enough funds to care for you. For example: your Attorney may need to cash in some of your investments, or sell a home. As a result, you will need to understand how different kinds of property are treated under other laws (such as tax law).

Similarly, when you die, your Personal Representative will have to deal with your property. This can involve many different things, including: investing, renting, selling, and/or transferring the property to beneficiaries.

If you have property located outside of Alberta, planning for your property during illness and after death becomes more complicated. There are several reasons for this, including:

  • Different kinds of property might be treated differently under the laws of another jurisdiction than they are in Alberta.
  • Tax rules about various kinds of property are different under the laws of another jurisdiction than they are in Alberta.
  • There may be different rules about which property passes through the estate and which does not. This may affect your Designation of Beneficiary forms.
  • There may be rules about trying to move property from one jurisdiction to another.
  • There may be different rules about what Attorneys and Personal Representatives can do with certain kinds of property.
  • There may be probate fees that are significantly higher than in Alberta.
  • There may be estate taxes.
  • There may be laws that create serious tax consequences for beneficiaries.
  • You may need to complete legal steps in that other jurisdiction (such as a separate Power of Attorney or an application for a grant of probate).

As a result, you will want to research and learn about the legal rules related to the property you have in other jurisdictions. With careful cross-border estate planning, you may be able to reduce or avoid these additional taxes, fees, and legal difficulties. Also, researching these issues in advance and giving this information to the person who will be representing you or your estate will make that person’s job easier when the time comes.

For more information, see the following resources.

Web The Difference between having a Will and having an Estate Plan
Patriot Law Group
English
This is a private source. Learn more here.

Video Cross Border Trusts and Estates Law Issues
Ontario Bar Association
English
This resource is from outside Alberta. Learn more here.

Web What is Mine Might Not be Yours: Estate Planning for Blended Families
Altro Levy LLP
English
This resource is from a private source outside Alberta. Learn more here. See the “Real Estate across the Border” section.

Web The Basics of U.S. Tax for Canadians
Stephen Katz Limited
English
This is a private source. Learn more here.



Web How New EU Rules for Cross-Border Estates Impact Canadians
Advisor Group
English
This is a private source. Learn more here.

PDF What’s up dock: Tax & estate planning for your vacation property
Canadian Imperial Bank of Commerce
English
This is a private source. Learn more here.

Presentation Canada-U.S. Estate Planning for the Cross-Border Executive
Prince Waterhouse Coopers
English
This is a private source. Learn more here.

PDF Cross-Border Canadian-U.S. Planning
Hodgson Russ LLP
English
This resource can be a challenge to read. Learn more here.

PDF Estate Planning for Fractured Families: Cross Canada Complexities
New Brunswick Bar Association
English
This resource is from outside Alberta and can be a challenge to read. 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.

If you are estate planning for property outside of Alberta, consider getting the advice of a lawyer and an accountant. If possible, you may wish to talk to experts from each jurisdiction. For information about how to find a lawyer and an accountant, see the Working with a Lawyer Information Page and the Community Legal Resources & Legal Aid Information Page.

To find non-Alberta legal information and out-of-province lawyers, see the Solving Legal Problems & Out-of-Province Issues Information Page.

For more information about these issues inside Alberta, see the “Planning for different kinds of property” section of the Planning for Death Information Page. Although that information is written for people planning for their property when they die, it can also apply when you are planning for your property during illness or incapacity.

Being a Personal Representative for an estate in a foreign jurisdiction

Sometimes, a Testator (a person who makes a Will) who lives in Alberta will appoint someone in another jurisdiction as their Personal Representative. Or, a Testator from another jurisdiction may have appointed an Albertan as their Personal Representative. Similarly, court a in one jurisdiction might appoint someone from another jurisdiction to be a Personal Representative.

Although it is possible for a person to be the Personal Representative of a foreign estate, there can be some challenges. It may take extra work and planning. For example:

  • What time of day will the Personal Representative communicate with people or organizations in the other jurisdiction? This can be tricky if the estate, beneficiaries, and the Personal Representative are in different time zones.
  • Will travel be required? How often? How will that be paid for?
  • Will the Personal Representative need help from another person who does live in the jurisdiction?

In many jurisdictions, the Personal Representative will also have to “post a bond.” A “bond” is money that is paid as a kind of insurance. It is meant to help ensure that the Personal Representative does not financially harm the estate. For example, stealing from the estate.

If being a Personal Representative for an estate in a foreign jurisdiction is not something you want to do, you can refuse to take on the job.

If you have already started the job, you can quit. Before doing this, you will need to consider many things. For example:

  • What are the requirements for resigning? For example: Do you have to resign in writing? Do you have to get the permission of a court?
  • Are your records completely in order?
  • How will this decision affect the estate?
  • Is an alternate Personal Representative named in the Will?
  • If you resign, will someone have to apply in court for a grant of administration?

For more information about being a Personal Representative for an estate in a foreign jurisdiction, see the following resources. Note that these resources are from private sources. Learn more here.





Web If you need to post an estate bond, read this
Estate Law Canada
English


To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Wills across borders: An introduction

Remember that “jurisdiction” refers to the right or ability of a government or a court to make laws and decisions about things in a particular geographic area. In general:

  • Governments can only make laws that apply in their geographic area.
  • Courts can only use the laws that apply where those courts are located.
  • People are governed by the laws that apply where they are located.

As a result, a Will that was written in Alberta may not be “recognized” in another jurisdiction. This means that the Will may not automatically apply in that other jurisdiction, and the terms may not be enforced by the courts there.

Or, a Personal Representative who is dealing with a Will that was created outside of Alberta may find that the Will is not “recognized” here. This can lead to many delays when trying to deal with the Testator’s property.

To deal with such issues, some laws include “conflict of law provisions.” These state when laws, documents, or court decisions from one jurisdiction can be used in another jurisdiction. For more information about these provisions, see the “Conflict of laws provisions” section above.

With Wills, conflict of laws provisions can be helpful in 2 ways:

  • to know if non-Alberta Wills will be recognized in Alberta; and
  • to know if Alberta Wills will be recognized outside of Alberta.

These 2 topics are discussed in the next 2 sections.

For more general information about the problem of Wills across jurisdictions, see the following resources.

Web If I move to a new province, do I need a new Will?
Estate Law Canada
English
This is a private source. Learn more here.

PDF Multi-Jurisdictional Wills
Continuing Legal Education Society of British Columbia
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

PDF Estate Planning for Fractured Families: Cross Canada Complexities
New Brunswick Bar Association
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

Web How New EU Rules for Cross-Border Estates Impact Canadians
Advisor Group
English
This is a private source. Learn more here.

Web New EU Rules for Cross-Border Succession Now Apply from August 17, 2015
O'Sullivan Estate Lawyers
English
This is a private source. Learn more here.

PDF Litigating Estate Disputes with Multi-jurisdictional Assets
de VRIES LITIGATION LLP
English
This resource is from a private source outside of Alberta, and can be a challenge to read. Learn more here.

PDF Estate Issues Pertaining to Foreign and Out-of-Province Real Property
Hollaman Estate Litigation
English
This resource is from a private source outside of Alberta, and can be a challenge to read. Learn more here.
Using (and probating) a non-Alberta Will inside Alberta

Sometimes, people need to use non-Alberta Wills inside Alberta. For example:

  • A person lived in another jurisdiction, and wrote a Will there. That person has property inside Alberta. The rules for writing a Will in that other jurisdiction are different than Alberta rules. Is the Will valid in Alberta?
  • A person used to live in another jurisdiction, and wrote a Will there. That person moved to Alberta and now has property in Alberta. That person never wrote a new Alberta Will. If the Will is valid, can the non-Alberta Will be probated in Alberta?

In Alberta, both the Wills and Succession Act and the Estate Administration Act address the issue of Wills that were written outside of Alberta.

Is the Will valid?

Sometimes, there may be a question about whether a Will is “valid.” For example: did the Testator follow all of the requirements for making a Will? This gets more complicated when dealing with the different requirements of more than one jurisdiction. Before a Will can be used, or probate granted, the Will must be valid.

Under Alberta law, deciding if a Will from outside of Alberta is valid for dealing with property in Alberta can depend on the kind of property:

  • For real property (such as land, houses, and condos), the law of the jurisdiction where the land is located will govern the matter.
  • For movable property, the law of the jurisdiction where the Testator lived at the time of his or her death will govern the matter.

For example:

  • A Testator lived in Ontario, and made an Ontario Will.
  • The Testator had land in Alberta, and the Personal Representative wants to use the Ontario Will to deal with that land.
  • The Ontario Will does not meet the requirements for a valid Will under Alberta law.
  • The Ontario Will cannot be used to deal with the Alberta land.

On the other hand:

  • A Testator lived in Ontario, and made an Ontario Will.
  • The Testator’s bank accounts are in Alberta, and the Personal Representative wants to use the Ontario Will to deal with those bank accounts.
  • As long as the Ontario Will meets the requirements of Ontario law, the Ontario Will can be used to deal with the Alberta bank accounts.

Even though the law sets out these rules for when non-Alberta Wills will be considered valid, you could still have problems with people or organizations accepting the Will. They may not know what the law says, or know if it applies to your situation. You may still need to probate the Will.

Probating the Will

In general, a Will is probated in the jurisdiction where the Testator lived. However, a Testator who lived outside of Alberta may have assets in Alberta. If this is the case, the Personal Representative may want the Will probated in Alberta. An out-of-province Will often needs to be probated in Alberta when the estate has real property in Alberta.

Exactly how an out-of-province Will gets probated in Alberta depends on what has happened in the other jurisdiction. This “other” jurisdiction is generally where the Testator lived and where the Will was written.

  • If the Will was probated in the other jurisdiction, the Personal Representative must apply to “reseal” the grant of probate in Alberta. “Resealing” is the process of having a local court confirm a court order from another jurisdiction.

  • If the Will was not probated in the other jurisdiction, a regular probate application will be required. The steps for probating an out-of-province Will are the same as probating an Alberta Will from Alberta.

For information about how to apply to reseal a grant of probate from outside of Alberta, see the following resource and the Process tab of this Information Page.

Web What is "resealing" probate?
Estate Law Canada
English
This is a private source. Learn more here.

For information about applying for probate in Alberta, see the Dealing with a Death in the Family Information Page.

Dealing with out-of-province Wills can be complicated. You may want to get the advice of a lawyer. For information, see the Working with a Lawyer Information Page. For other legal resources in your Alberta community that may be able to help, see the Community Legal Resources & Legal Aid Information Page.

Making a Will that can be used outside of Alberta

If you own property outside of Alberta, and you want to deal with that property through your Will, you will need to ensure that you have a Will that is valid where the property is located.

Depending on your needs and the jurisdictions in question, there are 2 main ways that you can approach this problem:

  1. You can write one Will that will apply in Alberta and in another jurisdiction.
  2. You can write separate Wills for each jurisdiction.

Option 1: Writing a Will that will apply in Alberta and in another jurisdiction

It may be possible to create a Will that will be valid in all of the jurisdictions. This will depend on your circumstances and the legal requirements of the jurisdictions involved.
 

Know the laws

As a starting point, you will want to know whether the laws in the other jurisdictions have conflict of laws provisions. You will need to know:

  • If the other jurisdiction states that foreign Wills are usable there as long as the requirements of the foreign jurisdiction were met. In this case, Alberta’s requirements would need to be met.
  • Or, if the other jurisdiction demands that its own requirements be met.

If your Will must meet the requirements of that other jurisdiction, you will need to learn about what that jurisdiction’s law says. The requirements to create a Will are not the same in all jurisdictions. Also, there may be different rules about what can be included in the Will. For example, different jurisdictions will have different rules about:

  • what can and cannot be gifted by Will;
  • who can be a beneficiary;
  • who must be a beneficiary; and
  • how different kinds of property can be treated upon death.

Understanding the laws and requirements of that other jurisdiction will help you to:

  • make decisions about how to plan for the property (see the “Estate planning if you have property outside of Alberta” section above);
  • know how to write a Will that will be valid in that other jurisdiction; and
  • understand what your Personal Representative will have to do to administer your Will in that other jurisdiction.

If your Will is not valid and enforceable in that other jurisdiction, family or loved ones might have to apply for a grant of administration in that other jurisdiction. This is because when the Will is not valid, the property is treated as if there was no Will at all. This can add a lot of stress and cost to an already difficult situation.

To find non-Alberta legal information to help you write a Will that is valid outside of Alberta, see the Solving Legal Problems & Out-of-Province Issues Information Page.
 

Issues with having a Will accepted

Even though the law sets out such rules about foreign Wills, your Personal Representative could still have problems with people or organizations accepting your Alberta Will. They may not know what the law says, and may not simply recognize your Alberta Will.

As a result, you may have to:

  • get the Will translated; and
  • get a letter or a Statutory Declaration from a lawyer, which states that the requirements of the other jurisdiction’s laws have been meet. A “Statutory Declaration” is a written and sworn statement of fact. It is often used outside of courts to allow a person to declare something to be true. It is a way to satisfy some legal requirement when no other evidence is available.
Be Aware

Even if you take these steps, your Personal Representative may still have to apply for probate (or something similar) in that other jurisdiction. You may want to warn your Personal Representative about this.

Creating documents that are valid in multiple jurisdictions is complicated. You may want to get the advice of a lawyer (possibly one from each jurisdiction, or one that practices in all of the jurisdictions). For more information, see the Working with a Lawyer Information Page . For other legal resources in your Alberta community that may be able to help, see the Community Legal Resources & Legal Aid Information Page.

To find non-Alberta legal information and out-of-province lawyers, see the Solving Legal Problems & Out-of-Province Issues Information Page .

For more information, see the following resources.

Video Cross Border Trusts and Estates Law Issues
Ontario Bar Association
English
This resource is from outside Alberta. Learn more here.

Web Probating Out of Province Wills in Alberta
Kahane Law Office
English
This is a private source. Learn more here.

PDF Multi-Jurisdictional Wills
Continuing Legal Education Society of British Columbia
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

Web Multiple Jurisdictions Might Mean Multiple Wills
Advisor Group
English
This is a private source. Learn more here.

PDF Multijurisdictional and separate situs will planning
O'Sullivan Estate Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Web Minimizing Probate Fees With Multiple Wills
Pushor Mitchell LLP
English
This resource is from a private source outside Alberta. Learn more here.

Option 2: Writing separate Wills for each jurisdiction

You might write a Will in Alberta and another Will in the other jurisdiction(s).

If you do this, there are many things to keep in mind. For example:

  • Have you met all of the legal requirements from each jurisdiction?
  • Have you fully explained where each Will applies?
  • Are you certain that one Will does not “revoke” the other Will?

For more information about things to consider, see the following resources.

Web Multiple Jurisdictions Might Mean Multiple Wills
Advisor Group
English
This is a private source. Learn more here.

Video Cross Border Trusts and Estates Law Issues
Ontario Bar Association
English
This resource is from outside Alberta. Learn more here.

PDF Multi-Jurisdictional Wills
Continuing Legal Education Society of British Columbia
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

PDF Multijurisdictional and separate situs will planning
O'Sullivan Estate Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

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

To create these Wills, you may want to get the advice of a lawyer (possibly one from each jurisdiction, or one that practices in all of the jurisdictions). For more information, see the Working with a Lawyer Information Page. For other legal resources in your Alberta community that may be able to help, see the Community Legal Resources & Legal Aid Information Page. To find non-Alberta legal information and out-of-province lawyers, see the Solving Legal Problems & Out-of-Province Issues Information Page .

International Wills

In 1973, Canada signed an international agreement called the Convention Providing a Uniform Law on the Form of an International Will (the “Convention on International Wills”). On December 1, 1978, it became part of Alberta law. Under this agreement, Albertans can create “International Wills.”

An International Will is recognized in various parts of the world if:

  • it meets certain standards;
  • it has been “certified” as an International Will; and
  • it is registered with the proper authority.

Once a Will is registered as an International Will, it will be recognized in all other jurisdictions that have both:

  • signed the Convention on International Wills; and
  • included that agreement in their own laws (this is also called “bringing it into force”).

In most Canadian jurisdictions, the Convention on International Wills is in force.

However, not all countries (or jurisdictions) recognize International Wills. The list changes over time. For a current list of jurisdictions where the Convention on International Wills is in force, see the following resource.

Interactive Status Map of the Convention Providing a Uniform Law on the Form of an International Will - Signatures, Entry Into Force
International Institute for the Unification of Private Law
English
The Convention is in force in the countries coloured blue.

If you own property in a jurisdiction where the Convention on International Wills in is force, you may want to consider registering the Will as an International Will. However, if your property is in a jurisdiction where the Convention on International Wills is not in force, registering your Will as an International Will will not help you.

To create an International Will in Alberta, the Testator must do 3 things:

  1. Create a Will that meets all of the legal requirements of an Alberta Will. If it is not a valid Will under Alberta law, it cannot be a valid International Will.
  2. Create a Will that meets the requirements of the Convention on International Wills.
  3. Register the Will with Alberta’s Office of the Public Guardian and Trustee.

For more information about how to create a valid International Will and how to register it, see the Process tab of this Information Page.

For more general information about International Wills, the following resources.

Web International wills | How it works
Government of Alberta
English

Web It’s a Small World: International Wills
Hull & Hull LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web The recognition of international wills
Squire Patton Boggs
English
This resource is from a private source outside Alberta. Learn more here.

Web International Wills
Pobbles Limited
English
This resource is from a private source outside Alberta. Learn more here.

Web The International Will
PartingWishes Inc.
English
This is a private source. Learn more here.

Web Convention Providing a Uniform Law on the Form of an International Will
International Institute for the Unification of Private Law
English
Planning your own funeral outside of Alberta

You may currently live in Alberta but expect to live out your final days in another jurisdiction, and be buried in that other jurisdiction. Or perhaps you lived in a different jurisdiction in the past, and you would like a final ceremony to be held back there.

Each jurisdiction has different rules about planning your own funeral. You will want to be aware of those rules.

To find non-Alberta legal information and out-of-province lawyers, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Death outside of Alberta and bringing your loved one’s remains back to Alberta

Having a loved one die while away from home is extremely challenging. You will be dealing with different laws. You may even have to handle all of the issues in a language you do not speak.

Death outside of Alberta, but within Canada

Sometimes, when a loved one dies in another Canadian province or territory, all of the death-related issues will be handled there. However, you may be making many arrangements from here in Alberta. Or, you may want to return your loved one to Alberta as soon as possible. Either way, you will need legal information about what to do when a person dies in that other province or territory.

Most Canadian jurisdictions have online information about what to do when a person dies there. See the following resources for information in the province or territory that you are dealing with.

British Columbia
 

Web Death & Bereavement
Government of British Columbia
English

Manitoba
 

Web Dealing with Death
Government of Manitoba
English

Web Lorsqu’un décès se produit
Government of Manitoba
French

New Brunswick
 

Web Death Certificate
Government of New Brunswick
English

Web Certificat de décès
Government of New Brunswick
French

Newfoundland and Labrador
 

Web Death Certificate
Government of Newfoundland and Labrador
English

Northwest Territories
 

Web Death Registration
Government of Northwest Territories
English

Web Enregistrement d'un décès
Government of Northwest Territories
French

Nova Scotia
 

Web Death
Government of Nova Scotia
English

Web Décès
Government of Nova Scotia
French

Nunavut
 

Web Death Certificate
Government of Nunavut
English

Web Certificat de décès
Government of Nunavut
French

Web ᐃᓅᔪᓐᓃᓂᕐᒧᑦ ᓇᓗᓇᐃᒃᑯᑕᖅ
Government of Nunavut
Inuktitut

Ontario
 

Web What to do when someone dies
Government of Ontario
English

Web Que faire lorsque quelqu’un décède
Government of Ontario
French

Prince Edward Island
 

Web Apply for a Death Certificate
Government of Prince Edward Island
English

Québec
 

Web What to Do in the Event of Death
Government of Québec
English

Web Que faire lors d'un décès
Government of Québec
French

Saskatchewan
 

Web Dealing with Death
Government of Saskatchewan
English

Yukon
 

Web Death - Vital Statistics
Government of Yukon
English

Web Décès - Statistiques de l’état civil
Government of Yukon
French

Death outside of Canada

If you are also outside of Canada, you can begin by contacting the nearest Canadian embassy or consulate.

Web Embassies and consulates
Government of Canada
English

Web Ambassades et consulats
Government of Canada
French

On the other hand, if you are in Canada and trying to deal with your loved one’s death abroad from here, you can start by contacting the Canadian Emergency Watch and Response Centre.

Web Request emergency assistance
Government of Canada
English

Web Demander de l'aide d'urgence
Government of Canada
French

For general information about how to deal with a death abroad, see the following resource.

Web Death abroad
Government of Canada
English

Web Décès à l'étranger
Government of Canada
French

Bringing your loved one back to Alberta

If you are bringing a body or cremated remains back to Alberta, you will need to follow both:

  • federal rules that apply everywhere in Canada; and
  • provincial rules that apply in Alberta.

If you do not follow these rules, you may not be allowed to bring your loved one home.
 

Rules that apply everywhere in Canada

The following resources explain the rules and processes for returning remains to Canada.



Web Cremated Remains
Government of Canada
English

Web Restes incinérés
Government of Canada
French

Web How to transport a deceased relative home to Canada
IMMIgroup
English
This is a private source. Learn more here 

Web Air Transportation of Human Remains in Canada
Canadian Funerals Online
English
This is a private source. Learn more here.

 

Additional rules that apply in Alberta

In addition to the rules listed above, the person who intends to deal with the body in Alberta (such as a funeral director, undertaker, or other person) must notify the medical examiner’s office. After being notified, the medical examiner may start an investigation to:

  • establish the cause of the death; and/or
  • establish the identity of the deceased person, if that is required.

These are requirements of Alberta’s Fatality Inquiries Act.

Death in Alberta and sending your loved one’s remains to another jurisdiction

It is possible to transfer your loved one’s body or cremated ashes out of Alberta. However, each jurisdiction has its own laws and rules for bringing in human remains. You will need to know about these laws and rules.

To find non-Alberta legal information, see the Solving Legal Problems & Out-of-Province Issues Information Page.

Be Aware

Under Alberta’s Fatality Inquiries Act, no one can take a body out of Alberta until the Alberta medical examiner (ME) issues a certificate that states that the ME has examined the Medical Certificate of Death.

Inheriting foreign property

An “inheritance tax” is tax paid by the beneficiaries of an estate. In Canada, there is no inheritance tax.

However, if you inherit property from another country, there can be many other tax issues and complications. For example:

  • Some inherited property has to be declared to the Canada Revenue Agency. It depends on the value and type of the property, as well as whether the property earns income.
  • The inheritance itself won’t be taxed in Canada, but the income it earns if it is invested will be taxed.
  • Each country has its own rules about whether people from outside the country can own real estate in the country, or whether funds can leave the country.

As a result, it is best to plan for cross-border inheritances before the Testator dies, if possible.

For more information about the consequences of inheriting foreign property, see the “Owning property together across borders” section above, and the following resources. Note that these resources are from private sources. Learn more here.

Web Declaring Inherited Overseas Property
Intuit Canada
English

Web Rules for Inheriting Foreign Property
Intuit Canada
English


Web Tax on foreign inheritance Canada
Madan Chartered Accountant
English

Web Are You Expecting Inheritance from Overseas?
Claudia Ku Tax & Financial Consulting Firm
English

Web Foreign Inheritances
Tax Specialist Group
English


Web German Inheritance Tax
J-H. Frank, Fachanwalt Erbrecht
English

Dealing with inheriting foreign property is complicated. You may want to get the advice of a lawyer. For more information, see the Working with a Lawyer Information Page.

Immigration issues: Sponsoring a family member to help provide care

When a loved one is in need of care, family members may consider sponsoring another family member to come to Canada to help provide that care. This can be done through the federal government’s Caregiver Program.

For more information about the Caregiver Program, and how to sponsor family members through that program, see the following resources.

Web Caregiver Program
Government of Canada
English

Web Programme des aides familiaux
Government of Canada
French

Web How do I sponsor parents, grandparents, adopted children and other relatives?
Ontario Council of Agencies Serving Immigrants
English

Blended family considerations

The law described on this Information Page 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 more challenging. For example: there can be misunderstanding and emotional conflict about who should have the right to make decisions. It may take some extra effort for those involved to understand and accept what the law says about these things.

If you need help, you could 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.

LGBTQ considerations

The law in Canada 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. There can be conflict about who should have the right to make decisions, and things may be generally more challenging. It may take some extra effort for those involved to understand and accept what the law says about these things.

However, you may be dealing with the laws of other countries. Outside of Canada, laws and cultural norms may not include LGBTQ rights. If you need help, you could 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 related to topics listed on this Information Page 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, in Canada, only 2 people can be legally married to each other, and only 2 people can be common-law partners or Adult Interdependent Partners (or their equivalents in any other Canadian jurisdiction). As a result, any rights given to the person with the status of “spouse,” “common-law partner,” or “Adult Interdependent Partner” can only involve one of the partners. This is also true of most foreign jurisdictions. See the Glossary for definitions of these relationships.

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 things may be generally more challenging. It may take some extra effort for those involved to understand and accept what the law says about these things.

If you need help, you could 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.

Process

Learn more about dealing with legal issues when other provinces or countries are involved. See the sections below to learn about:

  • Finding translators for legal documents
  • Finding “Central Authorities” under the Hague Convention
  • Resealing foreign orders under Alberta’s Adult Guardianship and Trusteeship Act
  • Making and registering an International Will
  • Resealing foreign grants of probate or grants of administration under Alberta’s Estate Administration Act

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: June 2016
Who is this Information Page for?

This Information Page contains information about the laws that apply when people are dealing with legal issues within the family and:

  • one or more of the parties is outside of Alberta; and/or
  • some related property is outside of Alberta.

Note: This page deals with legal concerns within families where the relationships are ongoing or continuing. It does not deal with out-of-province matters related to family breakdown or starting a family. If you need information about those matters, see the New Relationships & Out-of-Province Issues Information Page or the Family Breakdown & Out-of-Province Issues Information Page.

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.

You are currently on the Process tab of this Information Page, which has information about the processes you need to follow when there is an issue around jurisdiction. For information on what the law says about these issues, click on the Law tab above. There is also important information in the Common Questions and Myths tabs above.

Finding translators for legal documents and court orders

When dealing with legal issues across borders, you may have to find someone to translate legal documents for you.

To find interpreters who are trained for legal work, see the following resource.

Interactive Member Directory
Association of Translators and Interpreters of Alberta
English

To find a lawyer in Alberta who speaks the other language, see the following resource.

Web Find a Lawyer
Law Society of Alberta
English
Finding “Central Authorities” under the Hague Convention

If you have questions about the Hague Convention of 13 January 2000 on the International Protection of Adults, you can contact the Central Authority in the jurisdiction you are working with.

See the following resource for a list of Central Authorities.

Web Authorities: Convention of 13 January 2000 on the International Protection of Adults
Hague Conference on Private International Law
English
Resealing foreign orders under Alberta’s Adult Guardianship and Trusteeship Act

Under the Alberta Adult Guardianship and Trusteeship Act, you can apply to reseal a foreign order for Guardianship, Trusteeship, and Co-Decision-Making (or their equivalents).

Working with the Office of the Public Guardian and Trustee

Your application to reseal a foreign order will go through Alberta’s Office of the Public Guardian and Trustee. They can give you instructions and help you with the paperwork. Their contact information is in the following resource.

Application form

To apply to reseal a foreign order, you will need at least the “Notice of Application and Hearing” form (Form 39). You can find that form in the following resource.

PDF Guardianship & Trusteeship: Forms
Government of Alberta
English

When completing this form, you can include any other documents that support your application.

You may also need other forms. The exact forms required will depend on the situation. For help figuring out which forms will be needed in your case, contact the Office of the Public Guardian and Trustee.

Serving and mailing the documents

The legal term for the process of delivering certain kinds documents is “service.”

You must serve the documents on:

  • the adult who is the subject of the application;
  • the review officer at the Office of the Public Guardian and Trustee;
  • each Supporter, Co-Decision-Maker, Guardian, alternate Guardian, Trustee, alternate Trustee, Agent, or Attorney of the adult who is the subject of the application; and
  • each proposed Co-Decision-Maker, Guardian, alternate Guardian, Trustee, or alternate Trustee.

This service must be completed at least 20 days before the hearing date.

You must also send a copy of the “Notice of application and hearing” form to the following people by ordinary mail:

  • the spouse or Adult Interdependent Partner of the adult who is the subject of the application, if that person lives in Canada;
  • each parent of the adult who is the subject of the application, if that parent lives in Canada;
  • each adult child of the adult who is the subject of the application, if that adult child lives in Canada;
  • every adult sibling of the adult who is the subject of the application, if that sibling lives in Canada;
  • if the adult who is the subject of the application lives in a residential facility, the director of the residential facility; and
  • if the adult who is the subject of the application is a Status Indian who is a member of a band and is “ordinarily resident” on a reserve, the Chief of the council of the band.

The people listed above must receive this notice at least 20 days before the hearing date.

It is not enough for you to just serve and mail the documents: you must also prove that you completed these steps. To do so, the person who served/mailed the paperwork must swear an Affidavit of Service. This form is to be filed before the court date.

PDF Guardianship & Trusteeship: Forms
Government of Alberta
English
Choose “Guardianship” or “Trusteeship” and click on Form 40. The form will download onto your computer.

For help with filing, contact the Office of the Public Guardian and Trustee.

Responses

The people who receive this notice can ask to see any of the documents that have been filed for this application. They must make this request in writing. If that happens, you must then provide that person with a copy of the document(s) they asked for, at least 5 days before the hearing date.

Making and registering an International Will

An International Will is recognized in various parts of the world if:

  • it meets certain standards;
  • it has been “certified” as an International Will; and
  • it is registered with the proper authority.

Meeting the standards

To be a valid International Will, an Alberta Will must valid under Alberta law. For information about the requirements of making a Will in Alberta, see the Planning for Death Information Page.

In addition, in order to be registered as an International Will, the Will must meet all of the requirements listed in the Convention on International Wills. These include the following.

  • The Will must be in writing.
  • If the Will is longer than one page, each page must be numbered.
  • The Testator will need to declare in the presence of 2 witnesses that the document is his or her Will, and that he or she knows what the contents of the document are.
  • The Testator must make the same declaration in the presence of a person authorized to act in connection with International Wills (an “authorized person”). In Alberta, only lawyers are authorized to act in connection with International Wills.
  • The Testator will also normally need to sign the Will in the presence of the 2 witnesses and the authorized person. However, if the Testator previously signed the Will, he or she will need to “acknowledge” his or her signature in the presence of the 2 witnesses and the authorized person.
  • If the Testator cannot sign the Will, he or she will have to explain to the authorized person why he or she cannot sign it. The authorized person would then have to make a note of this explanation on the Will itself.
  • If the Testator cannot sign the Will, the Testator must direct someone to sign the Will on his or her behalf. This can be the authorized person, but it cannot be a witness.
  • The signature of the Testator (or of the person signing on the Testator’s behalf) must be placed at the end of the Will. If the Will has more than one page, there must also be a signature on each page.
  • The 2 witnesses and the authorized person will then need to “attest” (confirm) that they believe that the signature is that of the Testator. They do this by signing the Will in the presence of the Testator. These signatures must also be at the end of the Will.
  • The authorized person must note the date of his or her signature at the end of the Will. This date will be treated as being the date of the Will.

Currently, there is no requirement to store an International Will in a particular place. As a result, the authorized person will need to ask the Testator whether he or she wishes to make a declaration about where the International Will will be kept. This is called the “safe-keeping” of the Will.

Certifying the Will

The authorized person must attach to the International Will a “Certificate” confirming that the above requirements have been met. If the Testator makes a declaration about the safe-keeping of the International Will, the place where the Testator intends to store the International Will must be recorded in the Certificate. See the following resource for information about what the Certificate must say.

Web Convention Providing a Uniform Law on the Form of an International Will
International Institute for the Unification of Private Law
English
See Article 10 of the Annex.

The authorized person must keep a copy of the Certificate, and give a copy of the Certificate to the Testator in addition to the one attached to the International Will.

To complete all of the requirements of an International Will, you will need to see a lawyer. For information about how to find a lawyer, see the Working with a Lawyer Information Page.

Registering the Will

Once the International Will and the Certificate are complete, the Will must be registered with Alberta’s Office of the Public Guardian and Trustee. This must be done with following form.

PDF Schedule (International Will)
Government of Alberta
English

The Office of the Public Guardian and Trustee will not ask for the Will, or keep a copy of the Will.

Resealing foreign grants of probate or grants of administration under Alberta’s Estate Administration Act

To reseal a grant of probate or grant of administration from a foreign jurisdiction, you will need to apply to the Alberta Court of Queen’s Bench. 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.

The rules that govern the process of resealing a grant of probate or grant of administration 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.

To apply to reseal a foreign grant of probate or grant of administration, you must file the following documents.

  • Form NC 32 (application)
  • Form NC 33 (Affidavit)
  • Form NC 7 that lists only the property in Alberta
  • A copy of the foreign grant
  • Proof that the foreign grant has not been revoked and is still in full effect. This will usually be a certificate from the foreign court stating this.
  • If the deceased owned land in Alberta, proof that the Will meets the requirements of Alberta laws about Wills.
Be Aware

Other NC forms may be needed in certain circumstances.

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.

As with any court application, there will be filing fee. There is a range of court fees charged for resealing a grant of 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 resource.

Web Court fees
Government of Alberta
English
See “Court of Queen’s Bench - Surrogate matters.”
Be Aware

Asking the Court to reseal a foreign grant of probate or 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 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 help, you could talk to a lawyer or community organizations. For more information, see the Working with a Lawyer Information Page and 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

Provincial Court

Queen's Bench

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