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

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(19 intermediate revisions by 5 users not shown)
Line 1: Line 1:
{{DEMOWARNING}}
{{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert|date= February 2018}} {{Dial-A-Law TOC|expanded = wills}}
{{Dial-A-Law Blurb}}
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==


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.
===The law says how someone’s estate is distributed if they die without a will===
If someone dies without a will, [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/129389/sbc-2009-c-13.html#sec20 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 [[Your Duties As Executor|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.


==Why should you make a will?==
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.
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 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 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), 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.
*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.
*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?==
If the deceased had '''more than one spouse''' ([https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/129389/sbc-2009-c-13.html#sec2 possible under the law]), they share the spouse’s share equally (unless they agree or a court decides differently).
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?==
If the deceased had '''no spouse''', then the estate is divided among their descendants equally.
Without a will, the Public Guardian and Trustee becomes the trustee and holds the child’s shares 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?==
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.
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?==
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.
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 no one qualifies under the rules as the deceased’s next of kin, the estate goes to the provincial government.
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?==
{| class="wikitable"
The following are some of the things the administrator must do:
|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 [[Preparing a will and estate planning|preparing a will and estate planning]] for guidance on preparing a will.
|}


*Make funeral arrangements, if required.
===A person doesn’t have to be married to be considered a spouse===
*Locate all the estate assets and make sure that they’re secure; for example, ensure that a car or building is insured, and that valuable documents are in a safe place.
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.
*Advertise in a local newspaper for 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. In some cases, this involves searches throughout the world.
*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 relatives 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==
This means that more than one person could be the deceased’s spouse and share in the estate.
Making a will involves much more than just signing a document. It involves reviewing your potential estate and planning to minimize 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.


==Where can you get help or find more information?==
===The court may need to appoint someone to look after any children===
*You may call the office of The Public Guardian and Trustee at 604.660.4444 in Vancouver. Also check their website at [http://www.trustee.bc.ca www.trustee.bc.ca].
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.
*For estate planning and to prepare a will, consult a lawyer.  
*For more information on wills and estates, refer to Dial-A-Law scripts [[Making a Will and Estate Planning (Script 176)|176]], [[Your Duties As Executor (Script 178)|178]], [[The Disappointed Beneficiary (Script 179)|179]], and [[Power of Attorney and Representation Agreements (Script 180)|180]].


===A minor’s share must be paid to the Public Guardian and Trustee===
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.


[updated June 2014]
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.


{| class="wikitable"
|align="left"|'''Tip'''
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|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 [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/129389/sbc-2009-c-13.html#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.
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 [https://www.crownpub.bc.ca/Home/Gazette ''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)
* [http://www.trustee.bc.ca/ Visit website]
{{Dial-A-Law_Navbox|type=life}}
{{Dial-A-Law Copyright}}
{{Dial-A-Law Copyright}}

Latest revision as of 05:24, 10 November 2020

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.

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 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.

A minor’s share must be paid to the Public Guardian and Trustee

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.

Tip

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
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.