What Happens When You Die Without a Will? (Script 177)
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This script discusses why you should have a will, and if you don’t, who looks after your estate and how it is divided when you die.
- 1 Why should you make a will?
- 2 How is your estate divided if you die without a will?
- 3 Spouse include common-law spouse
- 4 When do children get their share?
- 5 Who controls your estate and looks after your children if you die without a will?
- 6 Who can apply to administer your estate?
- 7 Certain conditions may apply to appointing an administrator
- 8 What does an administrator do?
- 9 Estate planning and making a will is very important
- 10 More information
Why should you make a will?
Every adult who owns assets or has a spouse or young children should have a will. But surprisingly, many people don’t. 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. If you don’t have 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 for any young children you have. And the costs to administer your estate will be much higher. Script 176, called “Making a Will and Estate Planning”, has more on this.
How is your estate divided if you die without a will?
If you die without a will, BC’s Wills, Estates and Succession Act (WESA) controls how your estate will be divided, as follows:
- If you have a spouse and no children, your estate goes to your spouse.
- If you have a spouse and children, then what goes to whom depends on whether the children are also your spouse’s children. If so, your spouse gets the first $300,000 of your estate. If not, your spouse gets the first $150,000 of your estate. Then one half of the rest 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 their share.
- If you have more than one spouse (possible under WESA, and explained 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 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 other rules to figure out which next of kin may receive your estate if you have no spouse or children, and your parents and siblings aren’t alive or you have no siblings.
- If no one qualifies under the rules as your next of kin, your estate is said to “escheat” to the crown. This means it goes to the provincial government.
Spouse include common-law spouse
The definition of spouse in WESA includes a person who has lived with you for at least 2 years in a marriage-like relationship immediately before your death. It can be a common-law gay or lesbian relationship. So more than one person could be your spouse and share in your estate.
The Public Guardian and Trustee becomes the trustee to hold a 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 their money—no matter how much it is or whether they are mature or financially responsible. In contrast, if you have a will, you appoint the executor and trustee for the share going to a child under 19 and can require the share to be held in trust beyond age 19. And you can direct that the share be used for the child’s benefit, including support and higher education, without government involvement.
Who controls your estate and looks after your children if you die without a will?
If you don’t have a will then you haven’t appointed an executor to manage your estate when you die. And you haven’t appointed a guardian to look after any children. So the court must appoint someone to do these things. The person managing the estate 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 your estate?
Your spouse is the first person who can apply or nominate someone else to 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 can 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 no one else is willing to do it.
Certain conditions may apply to appointing 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 of other people who could be appointed administrator. And they may have to secure (deposit) money with the court (called a bond), to ensure they do the work honestly and competently.
What does an administrator do?
An administrator must:
- Make funeral arrangements, if required.
- Locate all the estate’s assets and make sure that they’re secure; for example, the administrator must ensure that cars or buildings are insured, and that important documents are in a safe place.
- Advertise in a local newspaper for 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 of other personal belongings. Sometimes, instead of being sold, assets may be given a certain value and transferred to an heir as part of their share of the estate.
- Locate all family members who may be heirs to the estate. This may involve contacting people outside of Canada.
- File all necessary income tax returns and obtain an Income Tax Clearance from the Canada Revenue Agency, 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.
- 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 to probate and administer your estate. 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.
- The Public Guardian and Trustee at 604.660.4444 in Vancouver
- For estate planning and making a will, consult a lawyer who specializes in the area.
- For more on wills and estates and personal planning, check scripts 176, 178, 180 and 426.
[updated April 2017]
The above was last reviewed for accuracy by Hugh McLellan and edited by John Blois.
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