Dying Without a Will in BC: Who Actually Inherits

A great many adults in Canada do not have a will. Many assume that without one "everything goes to my spouse" or, at the other extreme, that "the government takes it". In British Columbia neither is quite right.

When someone dies without a valid will, the Wills, Estates and Succession Act (WESA) sets out exactly who inherits and in what shares. This article walks through those rules, what they leave out, and the two situations in which they produce results families did not expect.

There is always a plan, just not yours

Dying without a will is called dying intestate. WESA's intestacy rules then decide who receives the estate, in a fixed order that pays no attention to who was close to you, who needs the money, or what you said at the dinner table. The Province takes the estate only at the very end of the list, if no relative within the fifth degree can be found. For most people the practical issue is not that the money disappears; it is that it goes to the wrong people, in the wrong proportions, at the wrong time.

If you leave a spouse but no children

The entire estate goes to your spouse. Under WESA a spouse is someone you were married to, or someone you lived with in a marriage-like relationship for at least two years. Note the flip side: a person stops being your spouse for these purposes once you separate, even if you never divorced. A spouse you are separated from at your death does not inherit on intestacy.

If you leave a spouse and children

This is where the arithmetic starts. Your spouse receives the household furnishings and a preferential share of the estate. The size of that share depends on whose children they are:

• $300,000 if all of your descendants are also descendants of your spouse; or
• $150,000 if any of your descendants is not a descendant of your spouse, as in a blended family.

If the estate is worth less than the preferential share, the spouse takes all of it. If it is worth more, the balance after the preferential share is split in half: one half to the spouse, the other half among your descendants. As an illustration, a $700,000 estate left by someone with a second spouse and children from a first relationship would give the spouse $150,000 plus half of the remaining $550,000, or $425,000 in total, with $275,000 shared among the children.

The family home has a special rule. A surviving spouse has the right to acquire the spousal home from the estate in satisfaction of all or part of their share, which can prevent the house being sold out from under them. Whether their share is large enough to cover the home's value is another matter.

If you leave no spouse

The estate goes down the family tree and then up it: first to your descendants; if none, to your parents; if none, to your parents' descendants, meaning your siblings and their children; then to grandparents and their descendants; then great-grandparents and theirs. Anyone more remote than the fifth degree of relationship is treated as having died before you, and only then does the estate pass to the Province.

What intestacy does not do

The default rules distribute money. They do none of the other things a will does:

• They do not name a guardian for minor children; a will is where parents normally do that.
• They do not create a trust, so a child's share is not held back until an age you consider sensible; it is typically managed by the Public Guardian and Trustee until the child turns 19 and then paid out in full.
• They leave nothing to stepchildren you did not adopt, to a partner of less than two years, to friends or to charities.
• They do not choose the person who administers the estate. Someone has to apply to the court to be appointed, and with no executor named that process is slower and the family has to agree on who it should be.

Two situations that surprise people

Separated but never divorced

Because a separated spouse is no longer a spouse under WESA, the person you parted from years ago does not inherit on intestacy. That is usually welcome. But the mirror image catches people too: a new partner of eighteen months is not yet a spouse, and inherits nothing, however committed the relationship.

Blended families

The $150,000 preferential share, followed by a half-and-half split, means a second spouse and children from a first relationship become co-owners of what is left, often including the home. These are exactly the circumstances in which disputes arise, and exactly the circumstances a will is designed to prevent.

Making a will is simpler than most people expect

A valid BC will must be in writing, signed at its end by the will-maker in the presence of two witnesses who are present at the same time, and signed by those witnesses in the will-maker's presence. Electronic wills are now recognised. The court does have power to give effect to a document that falls short of those formalities if it is satisfied the document records the deceased's intentions, but asking a court to do so costs the estate far more than a properly executed will would have.

A will lets you choose your executor, provide for a partner the statute would ignore, hold a child's inheritance in trust, name a guardian, and leave something to the people and causes that mattered to you. For most families it is a short document and a single meeting.

Put your own plan in place

Our wills and estate planning lawyers prepare wills, powers of attorney and representation agreements for individuals and couples across Metro Vancouver, including blended families and partners who are not married. If someone close to you has died without a will, we can also explain how the intestacy rules apply and who can apply to administer the estate.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.