When a parent dies without a will in BC, their child’s entitlement depends on whether a surviving spouse exists and whether that spouse is also the child’s parent. Under the Wills, Estates and Succession Act, if there is a spouse and children, the spouse takes the household furnishings and a preferential share of $300,000 if all the children are also the spouse’s, or $150,000 if any are not, and the rest is split, half to the spouse and half among the children. If there is no surviving spouse, the children inherit the whole estate in equal shares. A minor child’s share is held by the Public Guardian and Trustee until age 19.
Onyx Law Group has offices in Kerrisdale, Vancouver and in New Westminster, and principal lawyer Judith A. Janzen was called to the BC bar in 2000. Our wills and estates lawyers act for families who need a grant of administration, help with estate planning, or representation in a dispute over how an estate is divided. If a parent has died without a will, contact us to talk through your position.
This article explains who inherits, how the shares are worked out, what happens to minor children, and the steps that follow.
Understanding Intestate Succession
Understanding intestate succession begins with one idea. When a person dies without a valid will, the law decides who receives the estate, and the deceased person’s own wishes carry no weight. The text below explains that in British Columbia and how its rules compare to those of other provinces.
What Happens if You Die Without a Will in Canada?
When a person dies intestate, meaning without a valid will, the law fills the gap. Dying intestate leaves the deceased person’s legal affairs in the hands of the statute, and an intestate death in BC is no exception. Each province writes its own intestate laws, so a death in British Columbia is governed by Part 3 of the Wills, Estates and Succession Act, SBC 2009, c. 13 (WESA). That Act sets out who the intestate successors are and in what order they take.
Sometimes people refer to them as legal heirs or rightful heirs but WESA uses the term intestate successors. Intestate estates follow one priority list, and the closest surviving relatives come first. The law treats the estate as a fixed formula, so the parent’s wishes and family dynamics carry no weight. The only way to change that formula is through a will.
A will can also leave part of an estate unaddressed. Under section 25 of WESA, the same intestacy rules apply to any residue left over; this residue is also known as partial intestacy among lawyers.
What Is a Child Entitled to When a Parent Dies Without a Will?
The entitlement of a child first depends upon whether other family members survive their parents. The parent’s marital status at death matters, along with whether the parent left a legally married spouse, a common-law partner, or other children. Where no spouse survives, the children take everything, and where a spouse survives, the children share what is left after the spouse’s entitlements.
Some estate assets never enter this calculation at all, and other estate assets enter it only in part. Under section 162 of WESA, land that is held jointly passes automatically to the surviving co-owner upon death of another owner. Beneficiary designation on a benefit plan can direct those funds to the person named under Part 5. Having joint bank accounts raises different issues about who owns what money. Have a lawyer review any account with joint account holders before anyone assumes it is, or is not, part of the estate.
Someone also has to start the court process by applying for a grant of administration before the estate can be dealt with, and the court appoints the administrator. Under section 130 of WESA, the surviving spouse has priority, and a child who has the consent of a majority of the children comes next.
Intestate Succession Laws Vary by Jurisdiction
Intestacy laws differ from one province to the next, and from one country to the next. If the parent lived outside BC at death, another jurisdiction’s rules may decide your share, and you should get advice before assuming WESA applies. Ontario intestacy laws demonstrate how far they stray from those of British Columbia’s.
This table compares scores of the two provinces on issues that families care most about. It draws only on the statutes themselves, which are WESA for BC and the Succession Law Reform Act for Ontario.
|
Point of comparison |
British Columbia (WESA) |
Ontario (Succession Law Reform Act) |
|---|---|---|
|
Where the intestacy rules sit |
Part 3 of WESA |
Part II of the Act |
|
Spouse’s preferential share when children survive |
$300,000 if all the children are also the spouse’s, $150,000 if not |
$350,000 for deaths on or after March 1, 2021 |
|
How the rest is divided |
One half goes to the spouse, and one half goes to the children. |
Spouse takes one half of the residue with one child, one third with two or more children |
|
Dependant support claims |
Section 60 applies when the deceased left a will. |
Part V of the Act covers support of dependants. |
Ontario’s figure is set by regulation and BC’s by the statute itself, so the amounts can change over time. Check both before relying on them.
Distribution of Assets When a Parent Dies Without a Will
The law sets a fixed order of relatives who inherit, starting with a surviving spouse and children and moving outward to more distant relatives only when closer ones are missing. This section explains what happens to orders and who gets rights when a parent dies without leaving 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. A surviving spouse comes first, and the deceased’s children come next, with the descendants of any child who died earlier standing in that child’s place. Inheritance only passes to other family members if the parent has died with no spouse and no direct descendants alive.
Section 23(2) steps out gradually. Parents come first, then the descendants of the parents, such as brothers, sisters, nieces and nephews. Then grandparents and their descendants follow, which includes cousins, and great-grandparents and their descendants come after that. If there are no living relatives in any of those categories for the deceased, then the estate goes to the government according to the Escheat Act. Relatives of the fifth degree or further are treated as having died before the deceased.
Ordering is important among extended family members, but children rarely get that deep on the list. Children sit at the top, so more distant relatives and blood relatives such as aunts, uncles and cousins only take when the family tree has no closer branch.
Who Has Rights When a Parent Dies Without a Will?
Where a parent dies leaving both a spouse and children, section 21 of WESA sets the scheme. The spouse receives the household furnishings and a preferential share of the estate, and that can be a significant portion of a modest estate.
That share is $300,000 where all the children are also the spouse’s own children, and $150,000 where the children are not all common to the deceased and the spouse. Both figures apply unless a regulation prescribes a greater amount, and the Wills, Estates and Succession Regulation, current to October 20, 2026, does not. When there is one child who is not the spouse’s, the $150,000 level applies.
After the spouse gets furniture and their share of any preferences, the rest of the estate is then divided. One half goes to the spouse, and one half is divided equally among the children. The estate is measured after deducting household furnishings, outstanding debts, funeral and administrative expenses, and probate fees, which section 21 calls the net value.
If the net value of an estate falls below what a spouse prefers to inherit, then that spouse gets everything, and children get nothing. A parent with a modest estate and a surviving spouse can therefore leave the children with no inheritance at all.
If there is no surviving spouse, section 23 passes all the inheritance directly to the children and so the distribution of assets becomes clear. One child takes it all, and several children share it equally, so how many children there are only changes the size of each slice.
Section 24 handles a case involving a child who died prior to the parents. The estate divides into equal shares, one for each surviving child and one for each deceased child who left descendants. Then the share of that deceased child goes equally to their own children. Take a parent with three children, one of whom died earlier, leaving two children of their own. The estate splits into three equal parts, and the two grandchildren share the third part between them.
Who Is a “Child” and Who Is a “Spouse” When It Comes to Dying Without a Will?
Inheritance rights are based on legal ties, so the words child and ‘spouse’ have very specific meanings in the statute. A child is not always a biological child, and a spouse is not always a married partner. The paragraphs below describe how the law defines each element and why those definitions impact inheritance.
Who Is a Child of the Deceased for Inheritance Purposes?
The child of someone who has died who falls under intestacy rules means that child is a biological child of that person. WESA does not make the marital status of parents a condition of that.
A child legally adopted by the deceased also inherits, so adopted and biological children have the same inheritance rights. Things change for children who are adopted by different families now. Under section 3 of WESA, generally speaking, a child adopted later cannot inherit directly from the pre-adoption parent’s estate except through that parent’s will. The pre-adoption parent has no claim on the child’s estate either. Adoption by a spouse of someone who was previously a parent doesn’t end the connection between that parent and child for inheritance purposes.
Under intestate succession, WESA does not include stepchildren as those who will inherit. A stepchild who has not been adopted therefore has no automatic inheritance rights in a stepparent’s estate.
Who Is a Surviving Spouse for Inheritance Purposes?
Whether a spouse survives changes what the children receive. Under section 2 of WESA, two people are spouses if they were married. They are also spouses if they lived together in a marriage-like relationship for at least two years. Both must have been alive just before the death. A legally married spouse and a common law partner of two years or more therefore stand in the same position, and the same rules for common law spouses apply to both.
Marital status can also end. A marriage ends when there is any interest that arises regarding family property under Family Law Act rules. A marriage-like relationship stops counting when one or both partners end it.
A parent can leave more than one surviving spouse. Section 22 of WESA covers that, and it is short enough to quote in full.
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.
In practice, the spouses split the spousal share by agreement, and the court decides if they cannot. The case of a married spouse and a second partner is rarer than it sounds, but it does reach the courts.
What Is a Minor Child Entitled to When a Parent Dies Without a Will?
Young people ask questions that adults don’t because a young person can’t manage such a big inheritance by themselves. This section explains what rights minors have, who manages the money on their behalf, and who assumes responsibility for the child if parents pass away without leaving a will.
Inheritance by a Minor
The age of majority in BC is 19 under section 1 of the Age of Majority Act. It is not possible for minors to handle inheritances or access funds directly. Under section 153 of WESA, the personal representative must pay or transfer the minor’s share to the Public Guardian and Trustee (PGT) when no trustee or trust exists for the child. The PGT keeps it in trust.
If some of that share is not cash, then the PGT may convert it into cash, transfer it to the minor, or decline it and suggest to the court that a guardian be appointed. The court can also appoint a trustee on application, with notice to the PGT, and that trustee holds the share until the child reaches 19.
A lawyer can explain how parents or guardians go about using money to cover their children’s expenses.
One more consequence follows. With no will, a child who turns 19 can claim the whole share, whatever its size and whatever the child’s maturity. Parents have the choice of specifying when each child gets money from the will they write.
Guardianship of Minor Children
WESA decides who inherits and says nothing about who raises a child under 19. The general rule is that a child’s parents are also the child’s guardians. Section 53(3) of the Family Law Act covers a guardian who dies without naming a replacement. If one surviving guardian is also the child’s parent, that parent keeps all parental responsibilities unless an order says otherwise.
If there is no guardian left alive, then things become less clear. A child may need protection under section 13(1)(j) of the Child, Family and Community Services Act where a parent is dead and adequate provision has not been made for the child’s care. Then someone who is directed by that Act may get involved. A relative or another person who wants to act as legal guardian can apply to the court under section 51 of the Family Law Act. Then the court decides what is in the best interest of the child.
What Happens to a Child if Both Parents Die Without a Will?
Where both parents pass away without wills, each parent’s estate is dealt with under its own intestacy rules, so the children generally take under section 23, and a minor’s share goes through section 153. Someone must apply for a grant of administration for each estate. Care providers apply through section 51 of the Family Law Act, and courts then use a test that looks at what is in the children’s best interests.
A parent who plans ahead can sidestep that uncertainty. Under section 53 of the Family Law Act, a guardian can be named either in a will or in some other separate signed and witnessed document in the prescribed form. A parent who writes a will can name that person as someone to appoint as executor as well.
What Steps Follow When a Parent Dies Without a Will?
People frequently ask which things happen first. This section walks through the steps in sequence. Each point below is a separate heading and costs and times will vary depending on the specific estate in question.
Confirm There Is No Will
First, check for a will carefully. Look through the parent’s papers and safe deposit box, and ask any lawyer or notary the parent used. Later discovery of a will changes everything, and a will that only covers part of an estate results in partial intestate succession under section 25 of WESA.
Work Out Who the Intestate Successors Are
Next, identify surviving spouses as well as children and grandchildren if any of those children have predeceased their parent. Apply the definitions of spouse and child described above, because adoption and the two-year rule for common-law relationships can change who counts.
Apply for a Grant of Administration
Then someone asks the court to appoint an administrator. Section 130 of WESA sets the order of priority: spouses come first, and then children whose majority has given consent follow. A grant of administration is a legal document proving that an administrator has control over the assets of the estate. The application involves several legal forms filed with the court, and a lawyer can provide legal advice on completing them.
Applying carries two kinds of costs. There are court fees when you file something, and there’s also a fee called Probate Fee Act probate fee. The act imposes no charge for estates that total $25,000 or less. It charges $6 for each $1,000 or part of $1,000 from $25,000 to $50,000, and $14 for each $1,000 or part above $50,000. For an estate worth $400,000, this comes out to $5,050. The rate isn’t a flat percentage of the entire estate.
Pay the Debts and Distribute the Estate
Finally, the process of law winds down with distribution. The administrator pays outstanding debts, funeral costs, and administration expenses, and then distributes what remains under sections 21 to 24. Unless there is a trustee set up, what belongs to a minor goes to PGT. Legal fees vary depending on how complicated the estate is and whether there’s any dispute over dividing things. So it’s good to get an estimate beforehand when starting work.
What Is a Child Entitled to When a Parent Dies With a Will?
A will changes the picture, because the parent chooses who receives what instead of leaving it to the statute. The sections below compare the position of minor children, adult children, and blended families when a will exists, so you can see what planning ahead can change.
Minor Children
If you have young children, a will lets you appoint an executor, name a guardian, and set the age at which each child receives their inheritance. Without one, the default rules above apply to every child, whatever their age. It’s important to have good estate planning when the children are little. Putting estate planning into your life when the kids are young is protective for the long term because formulas don’t offer the same benefits, and it keeps the courts from making decisions that should be made by parents.
Adult Children
It’s good to have a will even when kids are all grown up. The intestacy formula is fixed, so it may not match how the parent would have divided the property. That mismatch can set off family conflict and family disputes, and disputes arise easily when nobody wrote the parent’s wishes down. It can also strain relationships during a difficult time.
If there is a will that leaves insufficient provision for a child and this child believes that, then another path becomes available. Section 60 of WESA lets the court order adequate provision for a will-maker’s spouse or children, but it applies where the deceased left a will. A disinherited child should speak to a lawyer promptly, because the claim must be started within 180 days of the date the grant is issued in British Columbia.
Blended Families
In a second marriage where one or both spouses have children from an earlier relationship, a will lets the parent decide how to divide property between the spouse, biological children, and stepchildren. The WESA defaults do not provide for stepchildren, and the $150,000 preferential share can apply when the children are not all common to both spouses. If parents want something different, they need a will that specifies this.
Frequently Asked Questions
Our estate lawyers get asked these questions by families where a parent has died intestate, and here is what follows based on how WESA currently reads today. They are general information, so a lawyer should look at your own facts.
Does a Child Inherit Everything if There Is No Surviving Spouse?
Yes, in most cases. Under section 23 of WESA, the children take the whole estate in equal shares when no spouse survives.
Can a Stepchild Inherit From a Stepparent Who Left No Will?
WESA does not name stepchildren among the people who inherit on intestacy, so a stepchild generally has no automatic share. Someone adopting a child as a stepchild can provide support through a will too.
What Happens to a Child’s Share if the Child Died Before the Parent?
Under section 24 of WESA, shares pass equally to the child’s direct descendants. If there are no descendants of that child, then the other children will get everything.
Who Holds a Minor Child’s Inheritance?
Unless a trustee or trust exists, the executor pays the share to the Public Guardian and Trustee, who hold that money in trust. The child can come claim it at age 19.
How Much Is the Probate Fee Without a Will?
The fee follows the same schedule as for any estate. It is nothing up to $25,000, $6 per $1,000 from $25,000 to $50,000, and $14 per $1,000 above $50,000.
Can I Claim Support From a Parent’s Estate if the Parent Left No Will?
A wills variation claim under section 60 of WESA applies only where the deceased left a will. When someone dies without a will, the intestacy rules in WESA decide who inherits. Ask a lawyer whether any other route applies to your facts.
Need Legal Advice on Intestacy?
A parent’s death without a will leaves a family dealing with grief and a fixed legal formula at once. Knowing who gets what, how shares are divided, and who takes care of children if they are minors simplifies handling this situation. A conversation with a lawyer early on can head off disputes before they harden.
Our estate lawyers have over 20 years of combined experience, and principal lawyer Judith A. Janzen, our Family Law Practice Leader, was called to the BC bar in 2000. The estate law professionals at Onyx Law Group help families in Vancouver and New Westminster with intestacy, grants of administration, and estate disputes. If a parent has died without a will, or you want one in place to protect your own children, Contact Us Today to book a consultation.
This article has general information about British Columbia Law and should not be considered as legal advice. Reading it or contacting Onyx Law Group does not establish a solicitor-client relationship. Every estate turns on its own facts, so speak with a lawyer about yours. This page is the responsibility of Onyx Law Group, with offices at Suite 201, 5455 West Blvd, Vancouver, BC V6M 3W5 and 26 Fourth Street, Suite 100, New Westminster, BC V3L 5M4.