When Someone Dies Without a Will

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.

Why should you make a will?

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 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?

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?

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?

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?

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 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?

The following are some of the things the administrator must do:

• Make funeral arrangements, if required.
• 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.
• 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

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?

• You may call the office of The Public Guardian and Trustee at 604.660.4444 in Vancouver. Also check their website at www.trustee.bc.ca.
• For estate planning and to prepare a will, consult a lawyer.
• For more information on wills and estates, refer to Dial-A-Law scripts 176, 178, 179, and 180.

[updated June 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

(1) A popular misconception under which people believe they are married to each other simply because they have lived together, or (2) a popular misnomer describing the legal relationship between long-term cohabitants. Common-law marriages have never been lawful in British Columbia. See "common-law marriage," "married spouse," and "unmarried spouse."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses under the Family Law Act without marrying. See "cohabitation," "marriage," and "spouse."

A person who holds property in trust for the benefit of another person. See "trust."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

A phrase describing how property is held by one person for the benefit of another person who is ultimately entitled to the use or proceeds of sale of that property. Money held in trust is held in a lawyer's bank account on behalf of a client, on the lawyer’s promise not to use that money except as may be agreed.

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

The person responsible for carrying out the instructions in a will and wrapping up a deceased person's estate and debts. The lovely feminine form of the word is "executrix," though the masculine form is commonly applied to executrices and executors both. See "estate," "testator," and "will."

A person not yet of the age of majority, a minor, a child. See "age of majority," "child" and "disability."

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

In wills and estates law, (1) the people intended or expected to receive property or other benefits under a will, or (2) a person's direct lineal descendants. See "executor" and "will."

In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

The process of checking the validity of a will, distributing a dead person’s estate, and settling their debts according to the instructions set out in that person's will. See "estate" and "will."