If there is no valid will, the estate passes under Part 3 of BC’s succession statute, WESA, not by family agreement or local custom. The share each relative receives depends on who survived the deceased.
| Family left behind | Result | Section |
|---|
| Spouse only (no child, grandchild or other descendant) | The spouse receives the whole estate | 20 |
| Spouse plus descendants, every one of them also the spouse’s | Furnishings and a $300,000 preferential share go to the spouse; any balance is divided equally between the spouse and the descendants as a group | 21(2), (3), (6) |
| Spouse plus descendants, at least one of them not the spouse’s (a child of an earlier relationship, for instance) | Same structure, but the preferential share is $150,000 | 21(2), (4), (6) |
| Descendants but no spouse | The descendants take everything | 23(2)(a) |
| Neither spouse nor descendants | Parents first, then siblings and their children, then grandparents’ lines, in the order the Act fixes | 23(2)(b) to (e) |
A worked example shows how the table operates. Suppose the net estate is $500,000 and the deceased leaves a spouse and two children they had together. The spouse first takes the household furnishings and $300,000. The remaining $200,000 is split: $100,000 to the spouse and $50,000 to each child. If one child was from an earlier relationship, the spouse’s first share drops to $150,000, and the remaining $350,000 is split $175,000 to the spouse and $87,500 to each child.
Two definitions change the answer more than any other. A partner who was never married to the deceased still counts as a spouse after two years of living together as a couple (section 2(1)). And a married couple stop being spouses for WESA when they separate in a way that creates an interest in family property under the Family Law Act, while unmarried partners stop being spouses when either ends the relationship (section 2(2)). A separated spouse who never divorced may therefore take nothing on an intestacy. Reconciling within a year, and living together again for at least 90 days in total, keeps the spouses from being treated as separated (section 2(2.1)).
Where debts, the funeral, administration costs and the probate fee leave less than the preferential share, the spouse simply receives what remains (section 21(5)). The calculation uses the estate’s value inside and outside British Columbia.
Who may apply to administer the estate
No will means no executor, so the person who will run the estate is chosen through an application to the Supreme Court for a grant of administration. Section 130 ranks the candidates. The spouse comes first, or someone the spouse puts forward. Next is a child backed by a majority of the deceased’s children (or that child’s nominee), then a child without that backing. Other relatives who inherit follow, again preferring those supported by a majority in interest, and only after them does the list reach people such as creditors.
The court can depart from this order. Before applying, the administrator must deliver a notice of proposed application (Form P1) to everyone entitled to share and, in some cases, the Public Guardian and Trustee, and then wait 21 days (Supreme Court Civil Rule 25-2).
What the administrator gathers first
- the death certificate and the wills notice search result;
- a family tree showing every spouse, child and grandchild, including any child of a child who died before the deceased;
- a list of assets with values at the date of death, and of debts;
- for land, the title search and the latest property assessment;
- the names and addresses of everyone who must receive the P1 notice.
When security is needed
By default an administrator posts no bond. Section 128 sets out when one is needed: security is required if a minor, or a mentally incapable person with no nominee who can act for them in estate matters, has an interest in the estate, or if the court orders it at the request of someone interested. The court may accept any form or amount of security, or restrict which powers the administrator may use without prior approval from the court or from the province’s Public Guardian and Trustee. A grandchild who inherits because a parent died first is the kind of minor beneficiary who brings section 128 into play.
The spouse and the family home
If the couple’s home forms part of the estate, WESA gives the surviving spouse an option that does not depend on anyone’s goodwill. Under sections 26 and 27 the spouse may acquire the spousal home from the administrator, in whole or partial satisfaction of the spouse’s share. The administrator must tell the spouse about this right when applying for the grant, and the right must be used within 180 days of the grant, though the court can allow longer. Where the home is worth more than the spouse’s share, the details of payment and valuation need advice before anyone signs.
Where an Enderby estate is filed
There is no courthouse and no Service BC office in Enderby. The application for a grant can go to any BC Supreme Court registry, according to the Province’s wills and estates guidance. The two nearest are in Salmon Arm (the courthouse on 2nd Avenue NE, about 22 km by road from Enderby City Hall) and in Vernon (the courthouse on 27 Street, about 36 km away). Either may suit; the choice is the applicant’s, and it does not limit where a later dispute is heard.
Each application must include a Vital Statistics search of the wills registry, which confirms whether a will was registered. The search can be done by mail or at a participating Service BC counter; the Salmon Arm office on 16 Street NE and the Vernon office on 30 Street both accept it. A clean search does not prove there is no will, so look through the deceased’s papers and ask any lawyer or notary they used before treating the estate as intestate.
When relatives cannot agree
A wills variation claim under WESA section 60 is only available where there is a will. On an intestacy, disputes take other forms: two relatives each seeking the grant, an administrator who will not account, or a claim that someone is or is not a spouse. Before any grant is made, a relative who received or was entitled to the P1 notice can lodge a Form P29 notice of dispute, and an administrator who mismanages the estate can be removed or required to pass accounts. Claims based on unpaid work or contributions, such as unjust enrichment, do not depend on whether there was a will.
Contested estates are the work of our estate litigation group, headed by Candace Cho, KC. See also challenging an executor, which applies equally to administrators.
Making a will so your family does not need this section
Everything above is what happens by default. A will lets you choose instead. Section 37 sets the formalities: a written document, your signature at its end made or acknowledged before two witnesses present together, and both witnesses’ signatures added while you watch. Section 58 lets a court rescue a document that misses a formality, but that takes a court application your family would pay for.
A will is also the place to name a guardian for young children, set up a trust so that money for a minor is not paid out in a lump sum at 19, and name an executor you trust. After signing, a wills notice filed with Vital Statistics for $17 tells your executor where to find the original. For decisions during your lifetime, an enduring power of attorney and a representation agreement complete the plan. Wills and the rest of our estate planning service are overseen by Sandy Minh Abley.
Enderby estate questions
My partner and I were not married. Do I inherit if there was no will?
Yes, provided the two of you had shared a home as a couple for two years or more and were still together when your partner died. If it had ended, you are not a spouse for WESA.
There is no will and my brother and I both want to administer. Who decides?
The child who has the consent of a majority of the children ranks ahead under section 130. If neither of you has that, the court decides, and it can appoint someone else.
Do we need a lawyer to get a grant of administration?
No law requires one, but the forms, the notice rules and any security requirement trip people up. We can prepare the application or review the one you have drafted.
Is there a charge for the first conversation?
On an estate litigation matter, no: the first half hour is free. For a grant of administration or a will, we quote our terms when you call.
