There are many compelling reasons to have a Will, but what actually happens when a person dies without leaving a Will? In British Columbia, the Wills, Estates and Succession Act (WESA) provides the intestacy rules.
Administration
Pursuant to section 130 of WESA, when a person dies without a Will, the court may grant administration of the deceased estate to person(s) related to the deceased, in a default priority order, ranging from next of kin – (a) spouse of deceased or a nominee of the spouse; (b) child of the deceased who has the consent of the majority of the deceased’s children; (c) person with consent of the majority of the deceased’s children; (d) child of the deceased without majority consent of the deceased’s children – to a nominee of the government, including the Public Guardian and Trustee. WESA also gives the court authority to deviate from the default priority order if the court “considers it appropriate… because of special circumstances.”
Guardianship
If a person dies intestate, leaving behind children under 19 years of age, and if the other parent is not alive or able to care for the child(ren), the court will appoint a guardian. In cases where there is no guardian to appoint, the Public Guardian & Trustee of BC and the Ministry of Children and Family Development will become the guardians.
Distribution
When a person dies without a Will, the deceased’s estate is distributed in accordance with sections 20-25 of WESA and are dependent upon the value of the estate and the surviving family members.
If there is a surviving spouse, the spouse is given the household furniture and the “preferential share” of the estate – either the first $150,000 or the first $300,000, depending on if the deceased had children with the spouse or children from another relationship. If the estate is less than $300,000, the spouse gets it all. If the estate is more than $300,000, the balance over $300,000 is distributed ½ to the spouse and ½ is divided and shared equally between all the deceased’s children. (Note: if a beneficiary is under 19, the Public Guardian & Trustee will hold the minor’s inheritance in trust until he/she reaches 19; the Public Guardian & Trustee takes a 5% administration fee, plus annual fees, for managing the trust).
If there is no surviving spouse, the estate is distributed in a default priority order through the deceased’s family as follows: (a) deceased’s descendants (b) deceased’s parents (c) deceased’s siblings (d) deceased’s grandparents or their descendants (e) deceased’s great-grandparents or their descendants. If after this point there is no surviving family, the estate passes to the government under the Escheat Act.
Summary
- “Intestacy” or “dying intestate” refers to a person dying without a Will.
- WESA governs intestacy procedures and rules in British Columbia, including providing a default priority list for beneficiaries and administrators.
- For parents who die together intestate, or a single parent who dies intestate without leaving a surviving parent capable of caring for minor child(ren), the court will appoint a guardian.
- Intestacy means that everything unfolds in accordance with legislation and court rulings and without consideration for the deceased’s wishes or relationships.
