It is a fact of life that all of us will experience the loss of loved ones. When family members die, it can bring up a lot of emotions. It can also bring up a lot of confusion and questions about inheritance rights. For that reason, it is so important to understand BC inheritance law.
This article provides an overview of some of the key issues that may arise after the death of family members, from dying without a will, to beneficiary rights, and probate rules. For more information please contact Onyx Law Group for a free consultation today!
A person who dies without a will is said to have died “intestate.” When an intestacy occurs, BC law says how the person’s estate must be distributed. The law in British Columbia, which is called the Wills, Estates and Succession Act, SBC 2009, c. 13 (“WESA”), contains detailed rules for who inherits when there is no will.
The deceased’s estate must be distributed to heirs-at-law according to WESA’s rules of intestacy. Distribution of the estate will depend on the value of the deceased’s estate and the combination of relatives the deceased leaves behind. The next sections in this overview contain answers to some FAQs on intestate inheritance to give you a general idea of what happens to an estate in BC if there is no will. If a family member has died without a will, it is highly recommended that you contact an estate lawyer as soon as possible for advice on whether—and what—you are entitled to.
If a spouse dies without a will, their surviving spouse inherits all if there are no other surviving descendants. The surviving spouse would also inherit all, even if there are other surviving descendants, if the net value of the deceased’s estate is less than the “preferential share of the spouse.” In case you are wondering, “descendant” means a “lineal descendants through all generations.” In most cases, that means the deceased’s children are his or her descendants. The deceased’s grandchildren are also descendants and would be entitled to a share of the deceased’s estate on an intestacy if their parent died before the deceased.
The amount of the preferential share depends on whether the deceased’s children are also the children of the surviving spouse. If so, the preferential share of the spouse is $300,000 plus half of the residue of the estate (if any) over that amount. If the children are step children of the surviving spouse, the preferential share is $150,000 plus half of the residue of the estate (if any) over that amount. In either case, the other half of the residue of the estate is distributed equally among the deceased’s children. A spouse also has special rights to retain the spousal home. A surviving spouse is entitled to require that the spousal home be given to them to satisfy part or all of their share of the deceased’s estate.
In BC, a common law spouse has the same rights to inherit on an intestacy as a legally married surviving spouse. Under WESA, the definition of spouse includes people who are married to each other, and also includes a person who has lived with another person in a marriage like relationship for at least two years at the date of death of one of the persons. So, it is actually possible for a person to die leaving two spouses: a spouse to whom they are still legally married.
The scheme for distribution of estate assets starts with determining whether the deceased had a spouse and/or children. There are other rules in the Wills, Estates and Succession Act that set out who the estate assets go to if the deceased dies without a will leaving no surviving spouse and no surviving children (e.g., the deceased’s parents, grandparents, uncles, aunts, and so forth).
In British Columbia, beneficiaries have many rights. Whether your family member died with a will or without a will, the person who is appointed executor or administrator of the deceased’s estate is your trustee and owes you basic duties of good faith, honesty, and fidelity. The personal representative of the estate (i.e. the executor, administrator, or trustee) must treat you fairly and is not allowed to give preferential treatment to other beneficiaries over you, unless the will maker directed them to do so in the will.
As a beneficiary, your rights include the following:
BC law is unique as we are the only province in Canada with wills variation legislation. WESA s. 60 allows for a court to change the terms of a will in order to impose a fair distribution of assets, specifically in the case of a spouse or child for whom adequate provision was not made. So, for example, if a will maker with two children dies leaving his or her entire estate to only one of the deceased’s child, the other disinherited child of the deceased can bring a wills variation claim. If the deceased leaves their surviving spouse out of the will or leave only a pittance, that spouse can being an estate litigation asking the court to vary the will in their favour.
In British Columbia, the need for a grant of probate can vary on a case-by-case basis. That being said, the general rule is that estates worth $25,000 or less do not need to go through probate. An estate’s value is determined by totaling the value of all the estate’s assets and subtracting any debts.
If probate is necessary, 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. Careful estate planning can reduce the need for probate and related probate fees. If you have questions or need help with probate fees or a probate application, reach out to our team of estate planning lawyers and estate litigators for legal advice.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at