What Happens If a Person Dies Without a Will in British Columbia

The intestacy rules in British Columbia dictate how the deceased’s estate is distributed among surviving relatives. The distribution follows a legal formula, which may not align with the deceased’s personal wishes. Here are the key points:

1. Surviving Spouse and No Descendants:
   • If the deceased leaves behind a spouse but no children or grandchildren, the spouse inherits the entire estate.
2. Surviving Spouse and Descendants:
   • If the deceased leaves behind a spouse and descendants (children, grandchildren, etc), the spouse receives the household furnishings and a preferential share of the estate. The preferential share is set at $300,000 if all descendants are also descendants of the spouse, and $150,000 if they are not.
   • The remainder of the estate is divided, with one-half going to the spouse and the other half to the descendants.
3. No Surviving Spouse:
   • If there is no surviving spouse, the estate is distributed to the deceased’s descendants.
   • If there are no descendants, the estate goes to the deceased’s parents or surviving parent.
   • If there are no surviving parents, the estate is distributed to the descendants of the deceased’s parents.

How distribution to descendants occurs.

Section 24 of the Wills, Estates and Succession Act outlines the rules for distributing an estate to the descendants of a person who has died intestate. A summary of this section is as follows:

1. Equal Shares:
   • When distributing the estate to the descendants, the property must be divided into equal shares. The number of shares is determined by counting:
     • The surviving descendants.
     • The deceased descendants who have left surviving descendants.
2. Generation Nearest to the Deceased:
   • The division of shares is based on the generation nearest to the deceased that has one or more surviving members.
3. Surviving Members:
   • Each surviving member of the nearest generation receives one share.
4. Deceased Members:
   • The share that would have gone to each deceased member (if they were alive) is divided among their descendants in the same manner.

This section of the WESA ensures that the estate is distributed fairly among the descendants, taking into account both surviving and deceased members of the nearest generation.

For example, if a person dies leaving behind three children (two alive and one deceased with two children), the estate would be divided into three equal shares. The two surviving children would each receive one share, and the share that would have gone to the deceased child is divided equally between their two children.

In the absence of a will, the court appoints a personal representative to administer the estate. This person is responsible for managing the estate, paying off debts, and distributing the remaining assets according to the intestacy rules.

The order of priority for who may be considered the personal representative in British Columbia, is established by sections 130 and 131 of Wills, Estates and Succession Act and is as follows:

Intestate Estate – When There Is No Will:

1. 1. The spouse of the deceased person or a person nominated by the spouse.
   2. A child of the deceased person with the consent of a majority of the children.
   3. A person nominated by a child of the deceased person with the consent of a majority of the children.
   4. A child of the deceased person without the consent of a majority of the children.
   5. An intestate successor other than the spouse or child, with the consent of the majority in interest of the estate.
   6. A person nominated by an intestate successor with the consent of the majority in interest of the estate.
   7. An intestate successor other than the spouse or child, without the consent of the majority in interest of the estate.
   8. A person nominated by the government if the estate would pass to the government.
   9. Any other person the court considers appropriate, including the Public Guardian and Trustee with their consent.

Administration with Will Annexed – When there is a will but no executor:

1. 1. A beneficiary with the consent of the majority in interest of the estate.
   2. A person nominated by a beneficiary with the consent of the majority in interest of the estate.
   3. A beneficiary without the consent of the majority in interest of the estate.
   4. Any other person the court considers appropriate, including the Public Guardian and Trustee with their consent.

If the deceased leaves behind minor children and there is no surviving parent able to provide care, the court will appoint a guardian. If no guardian is appointed, the Public Guardian and Trustee of British Columbia and the Ministry of Children and Family Development will become the children’s guardians.

When minor children inherit money through intestacy in British Columbia, several steps are taken to ensure their inheritance is protected and managed appropriately:

Funds Held in Trust:

The inherited funds are held in trust until the minor turns 19, unless disbursed earlier for the minor’s benefit. The Public Guardian and Trustee acts as the trustee for these funds, ensuring they are managed prudently and in the best interest of the child

While the Public Guardian and Trustee’s involvement ensures the protection of the minor’s financial interests, it also comes with certain limitations and costs. It is possible to apply to the court to appoint a trustee in place of the Public Guardian and Trustee. 

Limited Use of Funds:

While the Public Guardian and Trustee’s involvement ensures the protection of the minor’s financial interests, it also comes with certain limitations and costs. The funds held in trust by the Public Guardian and Trustee cannot be accessed freely for the minor’s benefit. Any requests for disbursement must be approved by the Public Guardian and Trustee, which can limit the flexibility in using the money for immediate needs or opportunities that may benefit the child.

Administrative Costs:

The management of the trust by the Public Guardian and Trustee incurs administrative costs, which are deducted from the trust funds. These costs can reduce the overall amount available to the child when they reach the age of majority.

Dying without a will can lead to unintended consequences and potential disputes among surviving family members. A will allows individuals to specify how their estate should be distributed, appoint guardians for minor children, and name an executor to manage their estate. It is strongly recommended to work with an estate lawyer to create a legally valid will and ensure that your wishes are followed.

For more information on estate planning and creating a will, please consult with a qualified estate lawyer.