The statute decides the shares
When someone dies without a will, Part 3 of the Wills, Estates and Succession Act (WESA) sets the distribution, and an agreement among relatives does not change it unless every person entitled agrees and is able to agree. In outline:
- A spouse and no children or other descendants: everything goes to the spouse.
- A spouse and descendants: the spouse takes the household furnishings and a fixed first share, then half of whatever remains; the descendants share the other half. The fixed first share is larger when every child is a child of both the deceased and the surviving spouse than when any child is from another relationship. Our Vancouver estate lawyers page sets out the amounts.
- No spouse: the descendants take everything, and if there are none, the estate passes to parents, then brothers and sisters and their children, and on along fixed lines.
“Spouse” includes a partner who lived with the deceased in a marriage-like relationship for at least two years, and excludes a spouse who had separated. Our article on who inherits under BC law explains the categories.
The difficulty in many estates is not the formula. It is that the formula produces several people with a claim to value locked up in one house, and nobody with the cash to pay the others out.
The surviving spouse and the house
WESA gives a surviving spouse a specific right over the family home when there is no will, or when the will does not deal with the home. The spouse may take the deceased’s interest in the home as part of, or towards, their share of the estate. The rules are in Division 2 of Part 3, and they run on fixed dates:
- Notice from the administrator. Whoever applies for the grant must, at the time of the application, give the spouse notice of the right to acquire the home.
- 180 days. The spouse has until 180 days after the grant is issued to exercise the right, unless the court extends the time. During that period the administrator may not sell or otherwise dispose of the home without the spouse’s written consent, unless the other assets and a mortgage on the home could not raise enough to pay the estate’s debts.
- The spouse’s notice. The spouse exercises the right in writing, delivered to the administrator (unless the spouse is the administrator), to the descendants who share in the estate, and to the Public Guardian and Trustee if any of them is a minor or mentally incapable without a nominee. The notice must say what value the spouse places on the deceased’s interest at the date of death.
- Value. If the administrator disagrees with that value, they must say so in writing, and either of them can ask the court to fix it. If the spouse is also the only administrator, the spouse must apply to the court for a valuation unless the descendants (and the Public Guardian and Trustee, where minors are involved) agree to the figure in writing.
- The difference. Where the deceased’s interest is worth more than the spouse’s share of the estate, the spouse may buy the remaining part at the value determined.
A spouse who lives in the home while this is sorted out pays the running costs from the date of death: insurance, property taxes, reasonable maintenance and repairs, utilities and mortgage payments.
If the spouse cannot afford to buy out the descendants, the court can, on the spouse’s application, let the spouse stay in the home and turn the descendants’ unpaid share into a charge registered against the title, with interest, payable later. The conditions are demanding: the spouse lived there at the death, the estate cannot pay the descendants without selling the home, buying them out would cause the spouse significant financial hardship, the spouse would suffer more from losing the home than the descendants would from waiting, and the spouse has an established connection to the home or to the community around it.
“Home” has a technical meaning. The definition covers land the deceased owned or owned in common, assessed for taxes with a building on it, where the couple ordinarily lived and that was not leased to someone else, and it also covers a share in a housing co-operative that carries the right to a suite the couple lived in. A house with a rented basement suite, a strata unit and a home held in joint names each need a closer look before anyone relies on these rules.
When the children are under 19
If a child of the deceased is a minor, three things follow.
First, the notice of the application for a grant must also go to the Public Guardian and Trustee, and so must the spouse’s notice about the home.
Second, an administrator usually provides no security (a bond) for the administration. One of the exceptions is where a minor, or a mentally incapable person without a nominee, has an interest in the estate. Where security is required, the applicant asks the court to decide what form and amount it takes, and the court can restrict what the administrator may do without approval.
Third, when the estate is distributed, a minor’s share that is not held by a trustee is paid to the Public Guardian and Trustee to hold until the child turns 19, unless the court has appointed a trustee instead. Where the share is part of a house rather than money, the Public Guardian and Trustee may convert it, transfer it, or decline it and recommend a trustee. A family that wants a relative to hold a child’s share needs that court appointment before distribution.
Before anyone is appointed
Between the death and the grant, nobody yet has full legal authority over the estate, but the house still needs looking after. Tell the insurer about the death straight away, since a home left empty can fall outside ordinary cover; keep property tax, strata fees and mortgage payments current; and keep receipts for anything you pay, because reasonable costs of preserving the estate are normally repaid from it. Do not move into the house, rent it out or clear it of contents before the family has agreed who will apply. Each of those steps can start a dispute later.
Who applies, and what happens if no one agrees
Someone has to apply for a grant of administration before banks, the land title office or a buyer will deal with the estate. The surviving spouse, or someone the spouse nominates, comes first; then a child who has the consent of a majority of the children; and so on down a list in section 130. Our article on how to apply to administer an estate when someone died without a will covers the forms.
Once appointed, the administrator controls the estate’s property and must account for it. That includes the house. Where heirs disagree about selling it, about who has been living in it rent-free, or about what it is worth, the administrator’s choices can be challenged, and the court can give directions or replace an administrator who is not acting properly. Distribution cannot begin until 210 days after the grant, unless every intestate successor entitled to a share consents or the court orders otherwise.
Where the application is filed
A grant can be applied for in any Supreme Court registry in BC. For East Vancouver, the obvious one is the Vancouver Law Courts at 800 Smithe Street, a short walk from our downtown office. The Supreme Court registry at the New Westminster Law Courts, 651 Carnarvon Street, near our second office, is also available. Disputes between administrators and heirs are Supreme Court proceedings as well.
Every application needs a wills search certificate from Vital Statistics, which also confirms that there really is no will on file. The Service BC office in Vancouver does not take wills searches; order the search by mail or at a Service BC office outside Vancouver, Burnaby and Surrey.
Avoiding this for your own family
Much of the above happens only because there was no will. A will can leave the home to the surviving partner outright, name an executor who can sell without waiting on a statutory timetable, and appoint a trustee for children’s shares so that nothing has to pass through the Public Guardian and Trustee. Our estate planning group prepares wills, powers of attorney and representation agreements. Homemade wills carry risks of their own; see our article on a homemade will that was upheld, along with gifts to the witnesses and What Kind of Lawyer Does Wills?. A will can later be changed by a codicil.
When the estate ends up in court
Not every dispute is about an intestacy. Where there is a will, family members may claim it was not validly made, or that it fails to provide adequately for a spouse or child. Our estate litigation team, led by Candace Cho, KC, acts in those cases; see our articles on a disinherited daughter’s wills variation claim, on removing co-executors and Disinherited Second Wife’s Lawsuit Against Her Stepchildren Dismissed.
Who you will work with
- Administration and grants: Veronica Manski, whose practice is limited to estates and trusts, leads our probate and estate administration work.
- Planning: Sandy Minh Abley, called to the bar in 2005, a member of STEP (the Society of Trust and Estate Practitioners) and a Certified Financial Planner.
- Disputes: Candace Cho, KC, a principal of the firm, which she and Judith A. Janzen formed when they joined forces in 2012, with Jackson Todd, Valerie LeBlanc, Kevin Campbell, Julia Pinnock, Louisa Ledesma, TJ Garcha, Jesse Patrao and Katya Richardson.
Profiles are on our team page. For separation and parenting questions, see our East Vancouver family lawyers.
Common questions
My husband died without a will. Do I have to sell the house to pay our children?
Not necessarily. You can elect to take the home towards your share within 180 days after the grant, and buy any remaining part. If buying out the children would cause you significant hardship, the court can let you stay and register their share as a charge on the title.
Our youngest is 15. Who holds her share?
Unless the court appoints a trustee before distribution, a minor’s share goes to the Public Guardian and Trustee to hold until she turns 19.
Can the administrator sell the house while the family argues?
Not during the 180 days after the grant without the surviving spouse’s written consent, except where the estate’s debts cannot otherwise be paid. After that, the administrator’s decisions can be reviewed by the court if a family member objects.
Do we have to go to the Smithe Street courthouse?
The application can be filed at any Supreme Court registry, including New Westminster. Most of the work is paper, and a lawyer files it for you.
Is the first meeting free?
The first 30 minutes on an estate dispute are free. For administration and planning work, the terms are explained when you call (604) 900-2538.
