Dying Without a Will – Intestacy Primer

Langley and Surrey Wills and Estates Lawyers

Today we are looking at what happens when you die without a Will in BC. We have broken this down into two main topics: (1) what happens to your property when you die without a Will in British Columbia; and (2) who will manage and administer your estate when you die without a Will in British Columbia.

What happens to my property if I die without a will?

When you die without a Will, you are said to have died “intestate”. When people refer to “intestacy”, they simply mean the state of dying without a Will. In BC, the rules of intestacy are governed by Part 3 of the Wills, Estates and Succession Act (WESA).

When you die without a Will in BC, the general rule is that your property will be distributed to your family in the following priority:

  1. Spouse
  2. Children
  3. Grandchildren and their descendants
  4. Parents
  5. Brothers and Sisters
  6. Nieces and Nephews and their descendants
  7. Grandparents
  8. Uncles and Aunts
  9. Cousins and their descendants
  10. Great-grandparents and their descendants

If there are survivors in any one category, then the distribution typically stops at that category—in other words, if you die without a spouse or children, but have grandchildren alive, your parents will not get anything (there will be no further distribution to the next category). There are exceptions. For example, between categories 1 (Spouse) and 2 (Children) there are specific rules for splitting the estate between your spouse and children who are alive when you die. These rules are discussed briefly in Examples 4 and 5 below.

Another exception is where a person who would have been entitled to your estate dies before you but leaves children behind. In this case, that person’s children would share in whatever entitlement their parent had in the estate.

Note: if you encounter an estate where there is no Will, it is always a good idea to contact a wills and estates lawyer to seek legal advice. The rules of intestacy can be complicated. There are many variables that can change the way an estate is distributed, and the outcome can vary widely from what you might expect from the examples set out below.

These are a few examples of what can happen when a person dies “intestate” or without a Will in BC, according to Part 3 of the WESA:

Example 1: die intestate with no kids and no spouse

If you die with no spouse or kids, the WESA provides that your estate will be split equally between your parents. If only one parent is alive when you die, everything goes to your surviving parent.

If your parents are not alive when you die, the estate is distributed (in the following order):

  • equally among your siblings who are alive when you die,
  • if none of your siblings are alive when you die, equally among your nieces and nephews who are alive (and so on down the chain of your siblings’ descendants),
  • if you don’ t have any siblings, nieces or nephews, then your estate would be split between your grandparents, or if they are dead, among your uncles and aunts and their descendants.

The chain of intestate succession continues until all avenues have been exhausted to the 4th degree of separation—in other words, the process continues until there is no one alive among your great-grandparents or any of their descendants. If all of these avenues are exhausted without locating a living relative, everything you own reverts to the Government.

Example 2: die intestate with a spouse but no kids

  • Entire estate goes to your spouse.

Example 3: die intestate with kids but no spouse

  • Everything split equally among your children.

Example 4: die intestate with a spouse and kids (where the children are yours and your spouse’s)

  • The first $300,000 of your estate, your household furnishings, and the right to purchase your family home goes to your spouse.
  • The remainder, if any, is split into 2 parts: 1/2 to your spouse and 1/2 split equally between your children.

Example 5: die instate with a spouse and kids (where all the children are yours—i.e. your spouse does not have any children)

  • The first $150,000 of your estate, your household furnishings, and the right to purchase your family home goes to your spouse.
  • The remainder, if any, is split into 2 parts: 1/2 to your spouse and 1/2 split equally between your children.

The above scenarios are examples of how your property might be distributed when you die without a Will in BC. However, a number of variables can change the outcome. For example, circumstances such as the presence of adopted children or blended families have created uncertainty as to who inherits when a person dies without a Will.

Of course, the easiest way to avoid uncertainties or any unwanted outcomes of dying intestate is to visit a lawyer or notary and prepare a Will.

Who will be my executor if I die without a Will?

When you die without a Will, generally speaking any person can apply to the court to administer your estate. However, the court must give priority among applicants according to section 130 of the WESA in the following order:

  1. Your spouse or a person nominated by your spouse.
  2. Any of your children, with the consent of a majority of your children.
  3. Your child’s nominee, with the consent of a majority of your children.
  4. Any of your children, without the consent of a majority of your children.
  5. Any other person entitled to your estate, with the consent of the successors representing a majority interest in your estate.
  6. Any other person entitled to your estate, without the consent of the successors representing a majority interest in your estate.
  7. Anyone else the court considers appropriate, including the Public Guardian and Trustee.

Contrast this with a will, where you are free to choose who you want to be your executor.

Summary

It is easy to see why Wills are such an important part of a good estate and succession plan. When you make a Will, you have tremendous freedom to decide how your property will be dealt with when you die. Conversely, if you die without a Will, provincial legislation (the WESA) will dictate who administers your estate and to whom it will be distributed. In many cases, the WESA’s default rules of intestacy will not align with your personal goals and wishes.

Disclaimer: This article is not a substitute for legal advice. If you have questions about the distribution of an estate you should contact an estates lawyer.

 

Schedule a consultation with a lawyer at Taylor & Taylor Law.

604-398-3988

info@ttlaw.ca

 

Share:

More Posts

Incorporating a Personal Real Estate Corporation (PREC) in BC

A personal real estate corporation is a special type of corporation available to licensed realtors in British Columbia, through which real estate services may be provided. In this article, we discuss the basics of incorporating a personal real estate corporation.

Langley_Surrey_Lawyers_Annual_Reports_Business Law

Annual Reports for BC Companies

In this article, we discuss the Annual Report and other routine annual paperwork that would apply to a typical, privately held BC company. Obligation to

Send Us A Message

Taylor & Taylor Law Corporation

Business and estate lawyers serving Langley, Surrey and the surrounding communities in the Lower Mainland.

More Information

Contact Us

Please do not send confidential or time-sensitive information through this form. This inquiry does not create a solicitor-client relationship with the lawyers at Taylor & Taylor Law Corporation.