What happens if my father dies without a will?

June 8, 2016 12:55 PM

My father has just been diagnosed with a pretty terminal brand of cancer. The last will he made is about 20 years old. I'm an only child and he's still married to my mother, but he seems completely uninterested in making a will. Whenever I ask him about it, he says he'll make one "eventually." I don't think that he gives a shit and I doubt he'll make a will. What now? We're in Alberta.

I guess, I'm pretty sure my mom will inherit everything... but she's not capable of dealing with everything herself (mentally ill, homebound), so I'll be responsible for taking care of her once he dies. I'm freaking out because I have NO IDEA what will happen if he dies without a will. He hasn't even shared his account numbers and other information (that I'm assuming we'll need to know to sort out everything once he dies).

I can't force him to make a will, but what can I do to prepare us if he never winds up making one? I'm completely overwhelmed and scared shitless.

posted by anonymous to Law & Government (10 answers total)

In Alberta, dying intestate, if he dies without a will, your mother will inherit everything - and that may be how he wants it. However, you might be able to convince him to make you the executor so you can legally help your mom - tell him it would be a burden on her (Which it would!)
posted by corb at 1:00 PM on June 8, 2016

I'm a bit confused does he have an old will or no will at all?
posted by bitdamaged at 1:00 PM on June 8, 2016

You say that the last will he made is about 20 years old. If that will still exists, then that's what will apply. the first thing you should do is track down that will.
posted by Azara at 1:01 PM on June 8, 2016

If he made a will 20 years ago, why do you think he doesn't have it anymore?
posted by roomthreeseventeen at 1:05 PM on June 8, 2016

Whenever I ask him about it, he says he'll make one "eventually."

Yeah, that's a problem.

1. You need to acknowledge to yourself that he's probably scared and this is why he doesn't want to deal with it. He's frightened and in denial, and you'll have to work slowly and gently to bring him over on this issue. (My mother was like this; thankfully my father was not, and we were able to get most of the paperwork in place before it became an issue.)

2. In as non-badgering a manner as possible, try to explain to him that if anything happens to him, it would be a kindness to you & your mother if you had the ability to help her manage any available resources. What if his illness progresses and he can't write checks or manage his finances? What if stocks need to be sold to provide for care? These are issues that might come up suddenly, and if he doesn't leave you & your mother with the necessary information, it could be very hard for either of you to function. (Like, unable to pay for the burial levels of dysfunction.) This might be a discussion that happens very slowly, in bits and pieces, over time.

Perhaps you might make the argument about yourself: "I really need to make a will because if I got hit by a bus tomorrow, I wouldn't want to make you & Mom have to go through probate."

Talk this over with your mother, as well. Make it a regular, non-stressful, topic of conversation. Providing for one's family after they die is something that people do for one another, as a matter of course. It's not going to bring death closer, and it can be a way to reassure your loved ones that if the worst happens, it won't be a nightmare trying to deal with it.

3. Then, see if he'll help you find the original will. Make sure it includes the current state of his affairs -- bank accounts, real property, etc. Take it to a local attorney who specializes in wills and have it reviewed, and if necessary updated. If he can't find the original will, the original lawyer might have it: they usually do.

4. See if you can get him to draw up a Power of Attorney giving you and/or your mother access to his accounts if he becomes incapacitated. If he's nervous about that, talk to the lawyer about how to protect his interests so that he doesn't feel threatened by that.

5. While you're at it, talk about an Advanced Directive as well, with a Medical Power of Attorney. Again, there may be instances where doctors insist on seeing an AD and if you don't have one, things could get sticky.

Good luck. This is very hard. But it will be so much better if you can get some of the paperwork done up front, when he still is able to comprehend, and participate.
posted by suelac at 1:31 PM on June 8, 2016

My father died this morning of cancer. He had the foresight to make his wishes for medical care (DNR, Medical Power of Attorney) and funeral arrangements very clear in writing. I cannot overstate how helpful this has been to everyone involved. You should try to have a serious conversation about these things as soon as possible, before his health deteriorates.
posted by workerant at 2:12 PM on June 8, 2016

OP, I'm sorry you have to deal with this.

Old will is still in effect. Try to find it — it will be much more helpful than no will at all. With no will, your mother with still inherit, but it will mean a ton more paperwork and hurdles to jump before she can get access to accounts, or titles to property, even access an already purchased burial plot, etc. Doubly hard when you're also grieving (I've witnessed this).
On preview, what workerant said (My condolences).

Hand-written wills are considered legit in Alberta, so long as your father hand-writes the whole thing and signs it himself. However this sound unlikely given his current attitude.

Maybe it would help if you took the first steps for him? Consider a basic DIY will, were you can prepare most of it, and just have him sign (along with witnesses) once he's read it over and agrees that it reflects his wishes. Maybe that would be enough of boost to help him along the way. Depends on his personality, and how he would react to that – you would know best.

P.S. IANAL
posted by Kabanos at 2:22 PM on June 8, 2016

His will and his list of assets (with account numbers etc) are two different things. If a new will is too overwhelming for him, can you start with the list? You may need that before he passes on, if he becomes incapacitated. Is he the sort to accept you offering to take over managing his paperwork/finances for him now, as a way to let him spend time on other things? Then at least you'd know what you were dealing with.
posted by une_heure_pleine at 2:47 PM on June 8, 2016

What is your mother's take on all this? Depending on how lucid she is, what you might want to pursue is getting whatever power of attorney (medical, legal), or guardianship documentation is appropriate for your jurisdiction set up for her that you can. I'd also pursue this sooner rather than later, because if her mental health declines too far, she may not be able to sign that documentation later when you really need it.

nthing that wills don't expire. Find the old will and see what it says. If you cannot find the old will, your jurisdiciton's intestacy laws will probably kick in, but any distribution of assets could be messed up if somehow a copy of the old will does surface.

If the three of you are comfortable with your mother inheriting everything (with you in a PoA/Guardian role), see if you can get your father to agree to sign a very, very short will, that states that it supercedes all previous wills, names you executor, and that all of his assets go to your mother, or to you if she predeceases him. Assuming, of course, that you have also secured your mother's valid signature on appropriate PoA type documents.

I suggest that you look for a lawyer, licensed in your jurisdiction, who is experienced with estate planning to help you with the actual drafting of documentation (and to tell you what actual documents you need).

Worst case: If you get all of this paperwork in order, and your father dies without sharing his account numbers and passwords, as executor, in most jurisdictions, you'll have a fair amount of power to just ask the banks for what you need. As well, even if you live in a jurisdiction where it is illegal to open mail addressed to someone else, as executor you are given that right -- you can just open up the statements and find the account numbers and contact the banks yourself.

Worst worst case: Your father passes on before you can get any paperwork signed. Then you will really need an estate lawyer. So you might as well find one now.

So...my plan, if I were you, would be to talk to your mom about guardianship, and find a lawyer who can help you do that to start. After that, look into the short will option. Worry about what money is where last.
posted by sparklemotion at 3:48 PM on June 8, 2016

Question is unclear on whether the 20-year-old will pre-dates father's marriage. If it does, seek further advice. In many jurisdictions this would make it invalid, but in Alberta there appears to have been a change in the law on this issue.
posted by wilko at 2:52 AM on June 9, 2016