While it’s easy to put off writing a Will, the consequences of passing away without one in British Columbia can be both complicated and unpredictable. Under the Wills, Estates and Succession Act (WESA), intestacy—the legal term for dying without a Will—sets out a detailed framework for how your estate will be handled, but this process may not align with your personal wishes or intentions.
This article explores how intestacy works under BC law, from the appointment of an estate administrator to the distribution of assets among surviving family members. We’ll break down what happens in the event of intestacy, and what steps you can take to avoid unintended consequences by ensuring your Will is up to date.
Administration of the Estate: Who Gets to Manage It?
When someone passes away intestate, the administration of their estate must be handled by someone appointed by the court. This person is known as the administrator, and they will be responsible for collecting assets, paying debts, and distributing the estate according to BC law.
The court follows a priority list to determine who is eligible to serve as administrator. The priority hierarchy generally looks like this:
- Spouse of the Deceased
- Children of the Deceased
- Other Family Members
- Government Appointment
This process may seem straightforward, but it can be challenging when family members disagree, or if no one from the family is suitable or willing to act as administrator. That’s why it’s critical to designate an executor in a Will, to avoid unnecessary conflict and delays.
Guardianship of Minor Children: Who Will Look After the Kids?
If a person with minor children dies without a Will, the court may need to step in and appoint a guardian for those children and, in the meantime, the kids will be put into foster care. Guardianship is an important consideration, as BC law prioritizes the children’s well-being, and decisions about their care will be made with their best interests in mind.
The court may consider a wide range of factors, including who in the extended family is willing and capable of taking on this responsibility. If no family member is suitable, the Public Guardian and Trustee and the Ministry of Children and Family Development may step in as temporary or permanent guardians, depending on the circumstances.
This part of the intestacy process can be emotionally charged and legally complex. A Will allows parents to designate who they wish to care for their children in the event of their passing, preventing unnecessary court involvement and uncertainty.
Distribution of Assets: How Will Your Estate Be Divided?
One of the most critical aspects of intestacy is how the deceased’s estate will be divided. Without a Will, BC’s intestacy rules will determine who gets what, and these rules may not align with the deceased’s intentions.
The distribution depends on whether or not a surviving spouse or child(ren) exist. Let’s break it down:
- If there is a surviving spouse: The surviving spouse is entitled to certain assets and a portion of the estate, which is called the preferential share. The amount depends on whether the deceased had children:
- If the deceased has children with the surviving spouse, the preferential share is $150,000.
- If the deceased has children from previous relationships, the preferential share increases to $300,000.
- If the estate is worth less than these amounts, the surviving spouse will receive everything.
Any remaining assets above this preferential share are divided in a 50/50 split between the spouse and the children of the deceased. In cases where the children are under the age of 19, their share will be held in trust by the Public Guardian and Trustee until they come of age. The trustee takes an administrative fee for managing these funds, which may include annual fees and a percentage of the total estate.
- If there is no surviving spouse: If the deceased has no spouse, the estate is divided among the descendants, parents, siblings, or other relatives, following a set priority order:
- Descendants (children, grandchildren, etc.)
- Parents of the deceased
- Siblings of the deceased
- Grandparents or their descendants
- Other relatives, including aunts, uncles, and cousins
- BC Provincial government (per the Escheat Act)
The Risks of Dying Intestate: A Scenario Without a Will
Dying without a Will may seem like an easy choice in the short term, but in reality, it often leads to outcomes that are both frustrating and financially complicated. Family members may find themselves involved in lengthy court battles, disagreements, and confusion about how the deceased’s estate should be divided. The court-appointed administrator may not be someone the deceased would have trusted, and loved ones may be left without clear guidance on how to handle the estate.
Moreover, intestacy laws don’t take into account personal wishes or relationships. For instance, a stepchild or new partner (who does not qualify as a “spouse”) may have no claim to the estate, even if they were a central part of the deceased’s life. Without a Will, a person’s final wishes are left to the interpretation of the courts and the application of cold, impersonal legislation.
Conclusion: The Importance of Having a Will
The complexities of intestacy law in BC highlight the importance of having a Will. It allows individuals to have control over who manages their estate, who will care for their children, and how their assets will be distributed according to their wishes. Without one, the state decides, and it may not be in line with what the deceased would have wanted.
Dying intestate means your loved ones will face additional stress, delays, and confusion at a difficult time. A Will provides clarity, certainty, and the opportunity to make your final wishes known. If you haven’t already, it’s time to consider creating or updating your Will—before it’s too late.
