What Happens When You Die Without a Will?
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Script 177 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses why you should have a will, and if you don’t, who looks after your estate and how it is divided if you die without one.
Why should you make a will?
Every adult who owns assets or has a spouse or young children should have a will. Surprisingly, many people don’t have one. The few hours that you spend with a lawyer planning your estate could save your spouse, children and other beneficiaries much time, effort and money. By not having a will, you lose control over who gets how much of your estate and when. You also give up the right to appoint a guardian of your choice for any young children you have. And the costs to administer your estate will be drastically increased.
How will your estate be divided if you die without a will?
If you die without a will, BC’s new Wills, Estates and Succession Act (WESA) dictates how your estate will be divided. It sets out the following rules:
- If you have a spouse and no children, your estate passes to your spouse.
- If you have a spouse and children, then what passes depends on whether the children are also your spouse’s children. If so, your spouse gets the first $300,000 value of your estate. If not, your spouse gets the first $150,000 value of your estate. Then one half of the balance of your estate goes to your spouse. The other half is divided among your children. Your spouse has the right to acquire the family home from your estate as part of his/her share.
- If you have more than one spouse (which is possible under WESA, and described later in this script), they share the spouse’s share equally (unless they agree or a court decides differently).
- If you have no spouse, then your estate is divided among your children, divided among them equally.
- If you have no spouse and no children, then your estate goes to your parents. If your parents aren’t alive, it goes to your brothers and sisters, divided among them equally.
- There are further rules if you have no spouse or children, and your parents and siblings aren’t alive.
Does a “spouse” include a common-law spouse?
The definition of “spouse” in the WESA includes a person who has lived with you for at least two years in a marriage-like relationship immediately before your death. It can be a common-law gay or lesbian relationship. This means that more than one person could be your “spouse” for the purpose of sharing your estate.
When would the children get their share?
Without a will, the Public Guardian and Trustee becomes the trustee and holds the child’s shares of the estate in trust for them until they’re 19 years old. The child’s parent or guardian would have to apply to the Public Guardian and Trustee for any money needed for things like living expenses or education. This can be a hardship if the child is quite young and the parent or guardian needs the money for day-to-day expenses. When the child turns 19, they can demand all of their money no matter how much it is, regardless of their maturity or financial responsibility. By contrast, if you have a will, you appoint the executor and trustee for the share going to a child under 19, and you can direct that the share be used for the child’s benefit, including support and higher education, without government involvement.
Who takes control of your estate if you die without a will?
In a will, you can name an executor to manage your estate when you die. The executor is often a relative, friend or other trusted person. You can also name a guardian to look after any infant children. But if you die without a will, someone must be appointed by the court to manage your estate. This person is called an administrator. The court will also appoint a guardian if you have children under 19 and the other parent isn’t alive.
Who can apply to administer and handle your estate?
Your spouse is the first person who can apply. If you have no spouse or if your spouse is unwilling or unable to be the administrator, then a relative can apply. If there are no relatives willing or able to do this, then any other eligible person could apply to be the administrator. This may include a friend of yours, or a professional such as a lawyer or accountant. The Public Guardian and Trustee – as Official Administrator for the province of BC – might also apply to administer your estate, if for example, no one else is willing to take on the task.
Certain conditions may apply to the appointment of an administrator
If you have debts when you die, the person who applies to be the administrator must get your creditors to agree to the application. Also, the person who applies may have to get the agreement from other people who could be appointed administrator. In addition, the friend or professional may have to deposit money with the court (called a bond), as a way to ensure they do the work honestly and competently.
What does the administrator do?
The following are some of the things the administrator must do:
- Make funeral arrangements, if required.
- Locate all of the estate’s assets and make sure that they’re secure; for example, the administrator must ensure that a car that is being used or a building is insured, and that important documents are in a safe place.
- Advertise in a local newspaper for the sake of potential creditors.
- Sell assets that need to be sold. This includes listing and selling real estate after having it appraised; selling stocks, bonds and other securities; and valuing and disposing other personal belongings. Sometimes, instead of being sold, assets may be given a certain value and be transferred to an heir as part of his or her share of the estate.
- Locate all family members who may be heirs to the estate. In some cases, this involves contacting people who may be outside of Canada.
- File all necessary income tax returns and obtain an Income Tax Clearance from the federal tax department, confirming that all income tax has been paid.
- Put all money in an estate account and use it to pay the estate's debts, income taxes, legal and accounting expenses, and possibly an administration fee.
- Pay any money left over to the heirs.
- Finally, make a report to the beneficiaries listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.
Estate planning and making a will is very important
Making a will involves much more than just signing a document. It involves reviewing your potential estate and planning to minimize tax costs and the costs of probating and administering your estate. As between spouses, and to some extent children, there are many legal ways to avoid paying substantial probate costs, administration costs, Public Guardian and Trustee expenses, and income taxes. Obtaining legal advice can help you minimize these expenses.
Where can you get help or find more information?
- You may call the office of The Public Guardian and Trustee at 604.660.4444 in Vancouver. Also check their website at www.trustee.bc.ca.
- For estate planning and to prepare a will, consult a lawyer.
- For more information on wills and estates, refer to Dial-A-Law scripts 176, 178, 179, and 180.
[updated March 2015]
The above was last reviewed for accuracy by Susan Hart, Jack Montpellier and Anna Kurt.
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