Dying Without a Will in BC

Making a Will is relatively easy and provides powerful peace of mind. Yet many BC residents don’t have a Will in place. Recent statistics suggest that only 50% of adults in British Columbia have a valid, up-to-date Will.

What happens in British Columbia if someone dies without a Will? The legal implications of “dying intestate” (that is, without a Will) may surprise you. Today’s article will discuss who inherits from an intestate estate, how an administrator is appointed in the absence of a Will, and most importantly, how to avoid dying without a Will in BC.

Legal Implications of Dying Without a Will in BC

If you die without a Will, it can cause confusion, stress, and disappointment for your family members. It can also increase costs and result in delays in administering your estate.

Who inherits from an intestate estate?

When a person dies without a Will in BC, their estate must be distributed to their heirs-at-law according to the detailed intestate succession rules set out in the Wills, Estates and Succession Act, SBC 2009, c. 13 (“WESA”). The standard asset distribution scheme in WESA also applies when a Will is silent on the distribution of a part of the estate, which is known as a “partial intestacy.”

The rules of intestacy in WESA are strictly applied. They dictate who inherits and how much, based on the total value of the deceased’s estate and the combination of relatives the deceased leaves behind. For example, if a person dies without a Will in BC:

• The deceased’s spouse automatically inherits everything if there are no other surviving descendants (i.e., a situation where the deceased leaves a spouse but no children or grandchildren).
• The deceased’s spouse will inherit the entire estate—even if the deceased leaves children and grandchildren—if the net value of the deceased’s estate is less than the “preferential share” of the surviving spouse, which is set by WESA. The surviving spouse also has special rights in relation to the spousal home.
  • The amount of the surviving spouse’s preferential share depends on whether the deceased’s children are also the children of the surviving spouse. If so, the preferential share of the surviving spouse is $300,000, plus all household furnishings, and half of the residue of the estate (if any) over $300,000.
  • If the deceased’s children are step children of the surviving spouse, the preferential share is $150,000 plus all household furnishings, and half of the residue of the estate (if any) over $150,000.
  • In either circumstance, the other half of the residue of the estate is distributed in equal shares among the deceased’s children.

• There can be more than one surviving spouse on intestacy because the definition of “spouse” in WESA includes people who are married to each other and people who have lived with each other in a marriage-like relationship for at least two years at the relevant time. That means a deceased person can leave behind both a lawfully married spouse and a common law spouse. The people who qualify as surviving spouses under WESA are both entitled to a share of the deceased’s estate.
• If the deceased dies without a surviving spouse, the estate is split equally among the deceased’s children and/or grandchildren.
• If the deceased dies without a surviving spouse and children or grandchildren, the estate is inherited by the deceased’s parents.
• If the deceased dies without a surviving spouse, without children or grandchildren, and is predeceased by their parents, the estate is inherited by the deceased’s siblings in equal shares.

WESA goes on to list other relatives that will inherit the deceased’s estate in priority order if none of the relatives mentioned above exist. If no other relatives can be found, the deceased’s estate “escheats” to the provincial government (that means the BC government is entitled to the estate’s assets).

Impact on Your Dependents and Other Relatives

WESA’s standard asset distribution scheme is mandatory. It doesn’t matter if you wanted one of your children to inherit more than others because they have greater need. It doesn’t matter if you would’ve left your estate to a charity or some other relative or friend if you made a Will. This can lead to bitterness, disappointment, financial strain, and in some cases, disputes or prolonged estate litigation among your loved ones.

It doesn’t matter if your minor children would be better off not receiving their inheritance until they are a bit older; if you die without a Will, your minor children automatically inherit their share of your estate when they turn 19. Conversely, if you have a Will in place, you can use it to set up a trust requiring your child/children’s share(s) to be held in trust by your estate executor until the age you select, at which point the child’s share is paid to the child (e.g., half at age 25, the other half at age 30). Your Will can direct your executor to use the child’s share for the child’s benefit, support, or education in the meantime.

You should also be aware that the Public Guardian and Trustee (“PGT”) will by default be the guardian of your minor child/children and their property if you die without a Will and there are no surviving guardians of your minor child/children. If someone steps up to be your children’s guardian, they will have to apply to the BC courts under the Family Law Act to be appointed.

The PGT will still be involved if a person is appointed guardian of your minor child/children. The PGT is required to hold a minor’s inheritance in trust until the child turns 19. Your child’s guardian will have to ask the PGT for funds to cover your child’s care and day-to-day expenses. That extra layer of involvement by the provincial government can be avoided by having a valid Will in place.

Probate and Administrator Appointment Process

How an administrator is appointed in the absence of a Will

In your Will, you choose your executor. The executor is the person (or people) you trust to manage your estate on your behalf when you die. If you die without a Will, a court application is needed for someone to be appointed to manage your estate. That person is called an “administrator.”

An executor and an administrator have the same core roles and responsibilities. Basic duties include gathering and protecting estate assets, paying debts, locating beneficiaries/intestate successors, and distributing estate assets. The key difference is that the executor is a person you selected, whereas the administrator may end up being someone you would not have chosen.

WESA gives priority to the deceased’s spouse to be appointed administrator. The deceased’s children are next in priority to apply to the court. The court can appoint a person it considers appropriate if neither the spouse nor the children apply. The PGT can also apply to administer the estate if no one else does.

An administrator has more hurdles to jump before your estate can be distributed, which can result in delay in your loved ones receiving their inheritance. For example, your administrator must have approval from your creditors if you died owing debts, and the other people who could be appointed administrator must agree to the administrator’s appointment. The administrator may also be required to post a bond, which means they must pay money to the court as security.

What probate is and why it’s necessary

Probate is the legal process for settling the estate of a deceased person. Essentially, probate is a court application to validate the Will (if one exists) and authorize a personal representative to act on behalf of the estate and carry out the administration of the estate.

Careful estate planning—which includes having a valid Will—can help you avoid or reduce the need for probate, which saves your estate time and money. On the other hand, if you die without a Will, the overall cost to administer the estate will be higher, and may also take longer. You’ll miss out on the opportunity to speed up the process and save money that should otherwise go to your rightful heirs.

If probate is necessary, the following probate fees are charged: at the time of writing, there is no fee for the first $25,000, a fee of 0.6% for amounts between $25,000 and $50,000, and 1.4% for amounts over $50,000.

Importance and benefits of having a Will

It’s so important for every adult to have a Will. A properly prepared and executed Will achieves several crucial goals:

• It sets out your instructions for who inherits from your estate (which assets and personal property, in what amounts, and at what age).
• It contains your wishes for guardianship and directions for care/upbringing of your minor children.
• It appoints an executor or executors who are responsible for handling your estate and carrying out your final wishes.
• It can be used to provide your intentions for your funeral or memorial service.

In short, a Will provides certainty for you and clarity for the loved ones who survive you.

How to Avoid Dying Intestate

You and your loved ones can avoid all the headaches, extra expenses, and red tape by having a valid Will. Preparing a Will or updating your existing Will can usually be done in one or two brief meetings. Our experienced estate lawyers can guide you through the steps to prepare your Will, and provide you with invaluable estate planning advice, regardless of how big or small your estate may be.

If a family member has died without a Will, it is highly recommended that you reach out to one of our team of estate lawyers right away to get advice on whether—and what—you are entitled to.