When Someone Dies Without a Will
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Hugh McLellan, McLellan Herbert in February 2018.|
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.
What you should know
The law says how someone’s estate is distributed if they die without a will
If someone dies without a will, the 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 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 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.
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.
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 no one qualifies under the rules as the deceased’s next of kin, the estate goes to the provincial government.
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 preparing a will and estate planning for guidance on preparing a will.
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 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 the deceased’s spouse and share in the estate.
The court may need to appoint someone to look after any children
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.
If someone dies without a will, if anyone who is entitled to a share in the estate is not yet 19 years old, the law in BC says their share must be paid to the Public Guardian and Trustee of BC. 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.
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 preparing a will and estate planning for more on the benefits of preparing a will.
The court will appoint someone to deal with the estate
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 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.
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.
Certain conditions may apply to appointing an administrator
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
An administrator must:
- 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 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.
- Advertise in the BC Gazette 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.
- 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 of the estate.
- Report to the heirs listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.
Who can help
With more information
The Public Guardian and Trustee of British Columbia is a government office that may agree to administer an estate when someone dies without a will.
- Call 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
- Call 1-800-663-7867 (toll-free)
- Visit website
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