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}}
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.
+
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).
  
==Why should you make a will?==
+
==Understand the legal framework==
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?==
+
===Why you should prepare a will===
If you die without a will, BC’s ''[http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01 Wills, Estates and Succession Act]'' (WESA) controls how your estate will be divided, as follows:
+
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.
*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, even if there are grandchildren alive, if their parent is alive (your child) the grandchildren will not share in the estate.
 
*If you have a spouse and descendants, then what goes to whom depends on whether the descendants are also your spouse’s descendants. 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 descendants. 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 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 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 law says how your estate is distributed if you die without a will==
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.  
+
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.
  
==When do minors get their share?==
+
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.
The [http://www.trustee.bc.ca/Pages/default.aspx Public Guardian and Trustee] becomes the trustee to hold shares of the estate in trust for a child or any beneficiary under the age of majority (19 in BC) 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 no one qualifies under the rules as your next of kin, your estate goes to the provincial government.
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?==
+
===You don’t have to be married to be considered a spouse===
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.  
+
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.  
  
==Certain conditions may apply to appointing an administrator==
+
This means that more than one person could be your spouse and share in your estate.
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.  
+
 
 +
===The court may need to appoint someone to look after your 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.
 +
 
 +
===A minor’s share will 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.
 +
 
 +
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"
 +
|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.
 +
|}
 +
 
 +
===The court will appoint someone to control your 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'''.
 +
 
 +
===There are certain people who can apply to administer your estate===
 +
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====
 +
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.  
 +
 
 +
===The duties of an administrator===
  
==What does an administrator do?==
 
 
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 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.
+
*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 a local newspaper for potential creditors.  
+
*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.
+
*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.  
 
*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.
+
*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.  
+
*Pay any money left over to the heirs (also called '''intestate successors''').
*Report to the beneficiaries, listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.  
+
*Report to the intestate successors 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.  
  
==Estate planning and making a will is very important==
+
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.
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.  
+
 
 +
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==
 +
 
 +
===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.
 +
:Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
 +
:Toll-free: 1-800-663-7867
 +
:Web: [http://www.trustee.bc.ca/ trustee.bc.ca]
  
==More information==
 
*[http://www.trustee.bc.ca/ 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 [[Making a Will and Estate Planning (Script 176)|176]], [[Your Duties As Executor (Script 178)|178]], [[Power of Attorney and Representation Agreements (Script 180)|180]] and [[Committeeship (Script 426)|426]].
 
  
  
 
[updated February 2018]
 
[updated February 2018]
  
'''The above was last reviewed for accuracy by Hugh McLellan and edited by John Blois.'''
+
'''The above was last reviewed for legal accuracy by [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert.'''
 +
 
 +
----
 
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Revision as of 21:18, 2 March 2019

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).

Understand the legal framework[edit]

Why you should prepare a will[edit]

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 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[edit]

If you die without a will, BC’s 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 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 your next of kin, your estate goes to the provincial government.

You don’t have to be married to be considered a spouse[edit]

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.

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

The court may need to appoint someone to look after your children[edit]

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.

A minor’s share will be paid to the Public Guardian and Trustee[edit]

If you die without a will, if anyone who is entitled to a share in your estate is not yet 19 years old, the law says their share will need to be paid to the 'Public Guardian and Trustee. 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.

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.)

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.

The court will appoint someone to control your estate[edit]

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.

There are certain people who can apply to administer your estate[edit]

The people who can apply to administer your estate are 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[edit]

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.

The duties of an administrator[edit]

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.
  • 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.
  • 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 (also called intestate successors).
  • Report to the intestate successors listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.

Common questions[edit]

Do I need a lawyer or notary public to help with estate planning?[edit]

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 preparing a will and estate planning explains this in more detail.

Get help[edit]

With more information[edit]

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.

Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
Toll-free: 1-800-663-7867
Web: trustee.bc.ca


[updated February 2018]

The above was last reviewed for legal accuracy by Hugh McLellan, McLellan Herbert.




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