According to a study from the National Institute of Aging, nearly half of Canadians don’t have a will. For Canadians between the ages of 35 and 54, that number drops to just one in three. Dying without a will means the deceased loses the ability to decide what happens to their assets.
In BC, the Wills, Estates, and Succession Act (WESA) sets detailed rules, known as intestate succession, to determine how an estate gets divided in these situations. If someone close to you had passed away without a will, you may be wondering whether or not you’re entitled to any of their assets. The answer depends on your relationship to the deceased and the size of the estate in question.
What Happens If a Person Dies Without a Will?
Under BC’s intestacy laws, the court must appoint an administrator to the estate to oversee asset distribution. This exists because, without a will, there is no named and legally recognised executor to handle affairs. The appointed administrator essentially assumes the executor’s role, overseeing estate distribution, managing outstanding debts, and maintaining records.
WESA establishes an order of priority that dictates which eligible individuals can assume the administrator role:
- The deceased’s spouse, who may also nominate someone else to act in their place.
- An adult child with majority support, meaning they have the consent of more than half of the deceased’s children.
- A person nominated by a child, provided that the nomination also has majority support from the other children.
- An adult child without majority support, who may still apply without the backing of their siblings.
- Other relatives with a stake in the estate, such as parents or siblings, who have the support of a majority interest in the estate.
- Any other person the court sees fit, including a creditor or the Public Guardian and Trustee of BC, if no family member is able or willing to act.
Once appointed, the administrator is bound by WESA’s rules for how the estate must be distributed.
How Are Assets Distributed During Intestate Succession?
Section 23 of WESA establishes the rules for how to divide an estate during intestacy. These same rules also apply in cases of partial intestacy, where a will exists but fails to address some portion of the estate. In either situation, WESA’s distribution scheme determines who receives what, based on the deceased’s family circumstances at the time of death.
Spouses and Children
Distribution starts with a spouse. In BC, “spouses” is broadly defined as either a couple legally married or a couple living together in a “marriage-like” relationship for at least two years. A terminated relationship or a marriage that ends in divorce disqualifies a spouse from distribution entitlement. However, couples who separate and then reconcile within a year or spend more than 90 days living together again within one year of a separation are not considered separate under WESA.
What a spouse receives depends on whether the deceased had children or not. If there are no children, the spouse inherits the entire estate.
In cases where children are involved, the spouse is entitled to a preferential share, which means:
- The spouse receives the household furnishings and $300,000 of the estate if all of the deceased’s children are shared between them. The rest of the estate is divided in half between the spouse and the siblings. If the estate does not exceed $300,000, the spouse receives everything.
- The spouse receives the household furnishings and $150,000 of the estate if any of the deceased’s descendants are not shared between the deceased and the surviving spouse. The remainder is split in half between the spouse and the siblings. If the estate does not exceed $150,000, the spouse receives the full amount.
If there is no surviving spouse, the estate is equally divided and directly passes to the deceased’s children.
Minor Children Without Guardians
When a child under age 19 lacks a surviving guardian, the director under the Child, Family and Community Service Act becomes the child’s personal guardian by default, while the Public Guardian and Trustee assumes responsibility for managing the child’s inheritance. That office controls how the funds are invested and determines how and when money is used for the child’s benefit.
A family member or other interested person who wishes to take on the guardian role must apply to the court under section 51 of the Family Law Act. The court’s decision is guided entirely by the best interests of the child, and it retains final discretion over who is appointed.
No Spouse or Children
When a person dies without a spouse or children, section 23 of WESA establishes which relatives or parties may have a claim to the estate, in the following priority order:
- Parents
- Siblings
- Grandparents
- Aunts, uncles, and cousins
- Great grandparents
- Descendants of great-grandparents, such as second cousins
If no eligible relative can be found at any level of that hierarchy, the estate escheats to the provincial government under WESA, meaning the Crown assumes entitlement to the deceased’s assets.
Get Legal Advice on Your Inheritance Rights
Intestate succession in BC follows a structured set of rules, but navigating those rules as a potential beneficiary can be complex, particularly where family circumstances are complicated or assets are difficult to divide. Stephens & Holman’s estate litigation team works with clients across BC who believe they may have a claim to an intestate estate. If someone close to you has died without a will and you are unsure of your entitlement, contact our offices today to schedule a free consultation.