What is a Child Entitled to When a Parent Dies Without a Will?

The death of a parent can be emotionally devastating. It can also be a time of deep confusion if the parent died without a Will.

When a Last Will and Testament is in place, it provides the deceased parent’s wishes for dividing their property and possessions after death. A Will helps prevent disputes among beneficiaries. It also appoints an executor who is in charge of managing and eventually distributing the deceased’s assets to the beneficiaries. All of that helps make the process of administering the estate run more smoothly.

What happens in BC when there is no Will? If a parent dies without a Will, British Columbia’s intestate succession rules kick in. These rules dictate who inherits and how assets and possessions must be distributed.

This article provides an overview of some of the key issues that can arise after the death of a parent without a Will, including inheritance rights, guardianship considerations, and estate administration. For more information, please contact Onyx Law Group for a free consultation today!

Understanding Intestate Succession

Definition of intestate succession

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.

When there is a Will but it is silent with respect to a part of the estate, this is known as a “partial intestacy” and the rules in WESA apply to that portion of the estate.

Legal implications of intestate succession

The standard asset distribution scheme set out in the Wills, Estates, and Succession Act can lead to outcomes that may not reflect the true wishes of the deceased—but the intestate succession rules are mandatory if a person dies without a Will in BC.

Another legal implication of death without a Will: someone must apply to court to be appointed “administrator” of the estate. The estate administrator is the person or people who are in charge of managing and distributing the estate assets to the beneficiaries. A child of a deceased person having the consent of a majority of the children of the deceased person can apply to be appointed. The process to become an estate administrator, which is governed by the Wills, Estates, and Succession Act, can be complex. See here if you would like more information about how to become an administrator of an estate without a Will in BC.

Intestate succession laws vary by jurisdiction

Before we dive into the nitty gritty of BC’s standard asset distribution scheme, it is important to note that intestacy laws vary by jurisdiction. Each province in Canada and many countries around the world have their own laws governing intestate succession, and they can vary widely from jurisdiction to jurisdiction. If your parent lives outside of BC and died without leaving a Will, it is highly recommended that you get legal advice  to determine your rights and entitlements under the laws of that jurisdiction.  

Distribution of Assets When a Parent Dies Without a Will

Hierarchy of beneficiaries under intestate succession

The rules of intestacy in WESA set out the order of priority for distribution of the estate when there is no Will. Who inherits and the specific share of the estate the beneficiaries receive depends on the presence and number of relatives, as well as the size of the deceased person’s estate. The deceased’s spouse, if any, is at the top of the hierarchy, followed by the deceased’s children, and then other family members if the deceased had no spouse or children.

What is a child entitled to when a parent dies without a Will in Canada?

A child’s entitlement when their parent dies intestate depends on whether the parent died leaving a spouse or children. Here is the basic scheme set out in WESA section 21 where a parent dies without a Will leaving a spouse and children:

The surviving spouse receives the household furnishings and a “preferential share” of the estate.

• If all of the children are of both the deceased and the surviving spouse, the preferential share of the spouse is $300,000.
• If all of the children of the deceased are from the deceased’s previous relationship, the preferential share of the spouse is $150,000.

After the spouse takes their preferential share, the remaining assets are distributed as follows:

• One half to the spouse, and
• One half to the children. divided equally among them. 

If the total value of the estate is less than the spouse’s preferential share, the spouse will be entitled to the entire estate and the deceased’ children will not receive anything from the estate.

If a parent dies without a Will leaving only one child but no spouse, the distribution of the estate is much simpler. Section 23 of WESA applies in that situation, which provides that the deceased’s child takes the entire estate.

If the parent died leaving more than one child, the estate is split equally among the children. Section 23 of WESA specifies that division among descendants is per stirpes, which means inheritance goes down the line of descendants. So, for example, if a parent had three children, and one of those children predeceases the parent but had children of their own, the deceased child’s share goes to their children, if any, in equal shares.  

Who is a “child” and who is a “spouse” when it comes to dying without a Will?

Who is a child of the deceased for inheritance purposes?

A biological child of the deceased is a child entitled to an inheritance under BC’s laws of intestacy. It does not matter if the child was born “out of wedlock” or born to married parents.  

A child who has been legally adopted by the deceased is a child entitled to an inheritance under BC’s laws of intestacy. The situation is different if a child of the deceased was adopted by another family. A child who has been adopted out has no entitlement or right to make a claim against the intestate estate of their biological parent.

A stepchild has no claim at law to the intestate estate of their stepparent.

Who is a surviving spouse for inheritance purposes?

Whether or not a parent died leaving a spouse has major implications for the inheritance of the deceased’s children. WESA defines “spouses” as married people or people living in a “marriage-like relationship” for at least two years. That means your parent’s common law partner is entitled to household furnishings and a preferential share of your parent’s estate as discussed above if your parent dies without a Will.

There can be more than one surviving spouse on intestacy. Your parent can leave behind both a lawfully married spouse and a common law spouse.  If your parent dies intestate leaving two or more spouses, section 22 of WESA applies:

22 (1) If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.

(2) If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.

Essentially, WESA section 22 requires surviving spouses to split the spousal share. If they can’t come to an agreement as to how the share should be split, the court will decide for them.

Special Considerations for Minor Children in the Absence of a Will

Inheritance by a minor

The age of majority in BC is 19. If a minor child becomes entitled to a share in their parent’s estate, that share must be paid to the Public Guardian and Trustee of British Columbia (“PGT”). The Public Guardian becomes trustee of the minor’s share of the estate and holds their share until they reach the age of majority. A parent or guardian of the minor child can apply to the PGT for money for day-to-day expenses relating to the care and upbringing of the children, or for tuition, etc. This can be cumbersome for the surviving parent.

It is also important to know that the where there is no Will, a minor child can demand their entire inheritance when they turn 19, regardless of the amount and regardless of the child’s level of maturity or responsibility. In contrast, a parent who makes a Will can specify in their Will the age at which they want their child to inherit their share of the estate.  

Guardianship of minor children

The intestacy rules in WESA govern inheritance. They do not speak to the issue of guardianship of children under the age of 19. The general rule is that a child’s parents are also their guardians, though there are exceptions to that rule. If a minor child has two parents, both of whom are the child’s guardians, and one of them dies intestate, the surviving guardian takes on all parental responsibilities with respect to the child.

If a parent dies without a Will and there are no surviving guardians, the Director under the Child, Family and Community Service Act, [RSBC 1996] c. 46 becomes the personal guardian of any minor children. A family member or other person who wants to become guardian of the child will have to apply to be appointed under section 51 of BC’s Family Law Act. The court has final discretion on who may become guardian of the child, based on what is in the best interests of the child.

Protecting the Interests of Children

Minor Children

If you are a parent of young children, it is strongly recommended that you have a Will in place. By having a valid Will, your loved ones can avoid the hardships discussed above should you pass away while your child is a minor. Preparing a Will allows you to appoint an executor, name a guardian for your minor child(ren), and specify what age you want your child(ren) to receive their full inheritance.

Adult Children

A Will is highly recommended even if your child or children are adults. The mandatory distribution scheme that applies if you die without a Will may not reflect your wishes or how you would have distributed your property and assets. That may leave your loved ones bitter and disappointed.

Blended Families

If you are in a second marriage and you or your spouse has children from a previous relationship, having a valid Will is a great way to ensure your loved ones are provided for in the way you think is fair. You can leave property to your stepchildren in your Will if you wish, or you can provide for your spouse and biological children in different shares than the defaults in WESA that would apply if you die without a Will.

Get legal advice on intestacy, inheritance laws, and estate planning

If you find yourself in the unfortunate circumstance of a parent passing away without a Will, it is crucial to understand your rights and the legal process involved. Seeking professional assistance can make a significant difference in protecting your interests and ensuring a fair distribution of assets. At Onyx Law Group, our experienced estate and probate attorneys are ready to guide you through the complexities of intestate succession and provide personalized solutions for your specific situation.

If you are a parent who would like to prepare a Will to secure your family’s future, our estate planning lawyers are ready to assist you.

Contact us today to schedule a consultation.