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Difference between revisions of "When Someone Dies Without a Will"

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{{Dial-A-Law TOC|expanded = wills}}
{{Dial-A-Law TOC|expanded = wills}}
If you don’t prepare a will, the law says how your property will get distributed. Learn what happens if you die without a will (and why you should prepare one).
If someone dies without a will, they’re said to have died “intestate”. The law says how their property will get distributed, and who has the right to “administer” their affairs.
==Understand the legal framework==


==Understand the legal framework==
===The law says how someone’s estate is distributed if they die without a will===
If someone dies without a will, the [http://canlii.ca/t/52x69#sec20 law in BC] says how their '''estate''' will be divided. A person’s estate is made up of the property and belongings they own on their death, with some exceptions (as explained in our information on the [https://dialalaw.peopleslawschool.ca/your-duties-as-executor/ duties of an executor]). The estate will be divided on an intestacy depending on the mix of relatives the deceased person leaves behind.
 
If the deceased leaves '''a spouse and no descendants''', the estate goes to their spouse. A “descendant” means a surviving person of the generation nearest to the deceased. This will almost always be children only. For example, grandchildren would get a share of the estate only if their parent (the deceased’s child) died before the deceased.
 
If the deceased leaves '''a spouse and descendants''', the spouse gets at least part of the estate. How much depends on whether the descendants are also the spouse’s descendants. If the deceased leaves a spouse and children — all of whom are also their spouse’s children — the spouse gets the first $300,000 of the estate and half of what’s left over. The other half is divided equally among the children. If any of the deceased’s children are not also their spouse’s children, the spouse gets the first $150,000 of the estate and half of what’s left over. The other half is divided among the descendants of the deceased (usually their children). In either case, the spouse has the right to acquire the family home from the estate as part of their share.
 
If the deceased had '''more than one spouse''' (possible under [http://canlii.ca/t/52x69#sec2 the law]), they share the spouse’s share equally (unless they agree or a court decides differently).
 
If the deceased had '''no spouse''', then the estate is divided among their descendants equally.


===Why you should prepare a will===
If the deceased had '''no spouse and no descendants''', then the estate goes to their parents. If their parents aren’t alive, it goes to their brothers and sisters, divided among them equally.
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 you spend 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 may be much higher. Our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] provides guidance on how to prepare a will.


===The law says how your estate is distributed if you die without a will===
There are other rules to figure out which next of kin may receive the estate if the deceased had no spouse or descendants, and their parents and siblings aren’t alive or they had no siblings.
If you die without a will, BC’s ''[http://canlii.ca/t/52x69#sec20 Wills, Estates and Succession Act]'' says how your estate will be divided. Your money and property will be divided as follows:
*If you have '''a spouse and no descendants''', your estate goes to your spouse. A '''descendant''' means a surviving person of the generation nearest to you. This will almost always be children only. For example, your grandchildren would only get a share of your estate if their parent (your child) died before you.
*If you have '''a spouse and descendants''', then what goes to whom depends on whether the descendants are also your spouse’s descendants. If you have a spouse and children — all of whom are also your spouse’s children — your spouse will get the first $300,000 of your estate and half of what’s left over. The other half will be divided equally among the children.
*If ''any'' of your children are not also your spouse’s children, your spouse gets the first $150,000 of your estate. Then one half of what’s left over also goes to your spouse. The other half is divided among your descendants (usually 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 [http://canlii.ca/t/52x69#sec2 the law]), 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 descendants equally.
*If you have '''no spouse and no descendants''', 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 descendants, and your parents and siblings aren’t alive or you have no siblings.
If no one qualifies under the rules as the deceased’s next of kin, the estate goes to the provincial government.


If no one qualifies under the rules as your next of kin, your estate goes to the provincial government.
{| class="wikitable"
|align="left"|'''Tip'''
Every adult who owns assets or has a spouse or young children should have a will. By preparing a will, you have control over who gets how much of your estate and when. You can appoint a guardian for any young children you have. And you can minimize the time and expense for others to deal with your affairs after you die. See our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] for guidance on preparing a will.
|}


===You don’t have to be married to be considered a spouse===
===A person doesn’t have to be married to be considered a spouse===
In this context, a '''spouse''' includes a person who has lived with you for at least two years in a marriage-like relationship immediately before your death. Same-sex common-law partners can be partners.  
In this context, a '''spouse''' includes a person who has lived with the deceased person for at least two years in a marriage-like relationship immediately before their death. Same-sex common-law partners can be spouses.  


This means that more than one person could be your spouse and share in your estate.
This means that more than one person could be the deceased’s spouse and share in the estate.


===The court may need to appoint someone to look after your children===
===The court may need to appoint someone to look after any children===
With a will, you can appoint a '''guardian''' to look after any young children you leave behind after you die. If you die without a will, the court will need to appoint a guardian if you have children under 19 and the other parent isn’t alive.
With a will, a person can appoint a '''guardian''' to look after any young children they leave behind after they die. If someone dies without a will, the court will need to appoint a guardian if the deceased leaves behind children under 19 and the other parent isn’t alive.


===A minor’s share will be paid to the Public Guardian and Trustee===
===A minor’s share must be paid to the Public Guardian and Trustee===  
If you die without a will, if anyone who is entitled to a share in your estate is not yet 19 years old, [http://canlii.ca/t/52x69#sec153 the law] says their share will need to be paid to the '''Public Guardian and Trustee'''. [http://www.trustee.bc.ca/Pages/default.aspx This public body] will become the trustee and will hold a minor’s share in an estate 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.  
If someone dies without a will, if anyone who is entitled to a share in the estate is not yet 19 years old, [http://canlii.ca/t/52x69#sec153 the law in BC] says their share must be paid to the '''Public Guardian and Trustee of BC'''. [http://www.trustee.bc.ca This public body] becomes the trustee and will hold a minor’s share in an estate until they’re 19 years old. The child’s parent or guardian can 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.
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 can make sure it is written so a minor’s share doesn’t need to be paid to the Public Guardian and Trustee. You can create a '''trust''' for gifts you leave to your minor children or anyone else who might still be a minor when you die, and appoint a trustee to manage the minor’s share until they turn 19. (If you don’t create a trust, a minor’s share might still be paid to the Public Guardian and Trustee, even if you have a will. Talk to a lawyer about drafting a trust for minors.)


{| class="wikitable"
{| class="wikitable"
|align="left"|'''Tip'''
|align="left"|'''Tip'''
When you prepare a will, you have the choice to require that a minor’s share 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.
By preparing a will, a person can create a '''trust''' for any gifts left to minor children or others who might be under 19 when the will-maker dies. The will-maker can appoint a trustee to manage the minor’s share for the minor’s benefit until they turn 19 (or a later age if desired). See our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning (no. 176)]] for more on the benefits of preparing a will.
|}
|}


===The court will appoint someone to control your estate===
===The court will appoint someone to deal with the estate===
If you don’t have a will then you haven’t appointed an executor to manage your estate when you die. So someone will need to apply to court so they can legally deal with your estate. The person appointed by the court to manage the estate is called an '''administrator'''.  
If someone dies without a will, then they haven’t appointed an executor to manage their affairs when they die. Someone will need to apply to court so they can legally deal with the deceased person’s estate. The person appointed by the court to manage the estate is called an '''administrator'''.
 
===There are certain people who can apply to administer the estate===
The people who can apply to '''administer''' the estate are listed [http://canlii.ca/t/52x69#sec130 under the law] by order of priority. The spouse of the deceased is the first person who can apply or nominate someone else to apply.
 
If the deceased did not have a spouse or if the spouse is unwilling or unable to be the administrator, then a relative can apply.  


===There are certain people who can apply to administer your estate===
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 the deceased, 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 the estate, if no one else is willing to do it.  
The people who can apply to '''administer''' your estate are [http://canlii.ca/t/52x69#sec130 listed under the law] by order of priority. 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====
====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 the person may have to secure (deposit) money with the court (called a '''bond'''), to ensure they do the work honestly and competently.  
If the deceased leaves behind debts when they die, the person who applies to be the administrator must get the deceased’s 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 the person may have to secure (deposit) money with the court (called a '''bond'''), to ensure they do the work honestly and competently.  


===The duties of an administrator===
===The duties of an administrator===
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An administrator must:
An administrator must:
*Make funeral arrangements, if required.
*Make funeral arrangements, if required.
*Locate all the estate’s assets and make sure they’re secure; for example, the administrator must ensure that cars or buildings are insured, and that important documents are in a safe place.
*Locate all the estate’s '''assets''' and make sure 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 the [https://www.crownpub.bc.ca/Home/Gazette BC Gazette] for potential creditors.  
*Locate all family members who may be legally entitled to a share of the estate (called an “'''heir'''” of the estate). This may involve contacting people outside of Canada.  
*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.
*Advertise in the ''[https://www.crownpub.bc.ca/Home/Gazette BC Gazette]'' for potential creditors.  
*Locate all family members who may be heirs to the estate. This may involve contacting people outside of Canada.  
*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.
*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.
*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.  
*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 (also called '''intestate successors''').
*Pay any money left over to the heirs of the estate.
*Report to the intestate successors listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.
*Report to the heirs listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.  
 
==Common questions==
 
===Do I need a lawyer or notary public to help with estate planning?===
With good do-it-yourself materials, you can write a simple will. The will can take care of basic concerns, such as leaving a home, investments, and personal items to loved ones.
 
But by having your will prepared by an experienced estates lawyer or notary public, you can be confident your affairs will be handled according to your wishes. It’s the safest way to avoid mistakes.
 
As well, preparing a will involves much more than just signing a document. It involves reviewing your potential estate and planning to minimize fees, taxes, and costs to deal with your estate. Obtaining professional help can help you minimize these expenses. Our information on [[Making a Will and Estate Planning (Script 176)|preparing a will and estate planning]] explains this in more detail.


==Get help==
==Get help==
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