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Dying Without a Will: What Happens to My Estate?


Illustration of a senior couple meeting with a friendly lawyer.

What happens when someone passes away without a will? We often meet with people who ask us if the government will get everything in this scenario. The short answer to that question is, yes, it can happen, but it depends mostly on whether or not you have living relatives. The bigger, more critical question is:


“What happens to my estate if I die without a will?”


Provincial Laws Govern Asset Distribution


Passing away without a valid will is referred to as dying “intestate.” An intestate estate does not have a will that identifies who should be the executor of the estate and who are the beneficiaries. The administration and distribution of an intestate estate in British Columbia is governed by the Wills, Estates and Succession Act (WESA). WESA outlines the rules for intestate succession and sets out who has priority to apply to be the administrator of the estate (on an intestate estate, the term "administrator" is used in place of executor). It also sets out how your estate will be divided among your surviving relatives, regardless of your wishes. 


Spouses and Children Take Precedence


On intestacy, your spouse or common-law partner (we will refer to spouse and common-law partner as “spouse” throughout this post) and children will receive the distribution of your assets. However, the specific allocation between your spouse and children depends on various factors, such as whether you have children from previous relationships or whether your spouse is the parent of all your children. If you have a spouse and no descendants, then your spouse will inherit your entire estate.


Descendents, in this case, means all lineal descendants through all generations; in other words, children, grandchildren etc. If you have no spouse at the time you pass then your descendants inherit your estate. If you have a spouse and children, and all your children are the common children of you and your spouse, your spouse receives the first $300,000 of your estate and half of the remainder. The other half is divided equally among your descendants in order. This first $300,000 is called a preferential share of the estate. If you have children who are not common to your spouse, your spouse’s preferential share is reduced to $150,000. If the value of your estate is less than the preferential share, your spouse receives your entire estate. This could mean that, without making a will, you have inadvertently left nothing for your children.


Other Relatives May Inherit


When dying without a will, If you don't have a surviving spouse or children, your estate will pass to other relatives, depending on which relatives are alive at the time of your death. Here is the sequence of who would inherit. The sequence stops when any living relatives at a given layer are found:

  • Your parents;

  • Your siblings;

  • Descendants of your siblings (your nieces or nephews etc.);

  • Your grandparents;

  • Your aunts or uncles;

  • Descendants of your aunts or uncles (your cousins etc.);

  • Your great-grandparents;

  • Descendants of your great-grandparents. 

In essence, WESA ensures that your closest living relatives inherit your estate. 


Provincial Government May Inherit


A lot of people ask us if the government will get their estate in certain situations. It is rare, but it can happen. WESA does set out that the above examination of relatives has an endpoint. If no living relatives are found in the above sequence, your entire estate may be claimed by the provincial government under law set out in the Escheat Act. The provincial government could also receive your estate if you have living relatives but they disclaim their inheritance. This underscores the importance of having a will to ensure that your assets are distributed according to your wishes rather than defaulting to the provincial government.


Lack of Personal Control


Perhaps the most significant drawback of dying without a will is the lack of personal control over the administration of your estate. First, your estate could have competing claims about who should be the administrator. This can cause delays, and discord, and cost the estate money in legal fees. Second, your estate may be distributed in a way that doesn't align with your wishes or values. Unintended consequences can follow, such as family disputes, and potential financial hardships for your loved ones.


Delayed Probate Process


Administering an intestate estate can be more complex and time-consuming than dealing with one where a will is present. Without clear instructions, the probate process may be delayed as your administrator works to identify relatives and resolve potential disputes. Since an administrator needs to be identified, it can even cause delays in dealing with your remains and a funeral home since only an executor/administrator can give those instructions. 


I Want My Estate to go to my nearest living relatives anyway


A lot of wills people make inherently follow the intestacy laws pretty closely. For example, many people leave everything to their spouse, and then to their children equally. Since that is what could happen if they died intestate, they may question the value of making a will at all. Even if you plan on leaving your estate to your nearest living relatives, making a will is important. Your will establishes who the executor is. A well-drafted will also contains sections that set out the power and authority of the executor and any limitations. It leaves little room for doubt among your relatives about your intentions. In our experience, dealing with financial institutions, ICBC for vehicles, home insurance and utilities is much easier for your family when there is a will.


In short, leaving a will makes the administration of your estate easier for those you care about. Don't leave your estate to chance—consult with an experienced estate planning lawyer to create a legally valid will that secures your wishes and provides peace of mind for you and your loved ones.


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