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

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.

===The law says how someone’s estate is distributed if they 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.

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 [[Making a Will and Estate Planning (Script 176)|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, [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.  

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 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'''.

 

 

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.  

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.  

*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.

*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.