A question we are consistently asked as estate lawyers is “who inherits when someone dies without a will?” This is an issue that is all too common in Canada, as a recent study found that over half of Canadians do not have a will in place. This article aims to help you better understand how an estate will be distributed in British Columbia when a person dies without a will.
When a person has died without a will the estate is legally referred to as an “intestate”. Since there is no will to specify who will inherit the deceased’s assets, distribution of the estate in British Columbia is determined by the rules set out in the Wills, Estates and Succession Act (WESA). Distribution under these rules can either be very simple or quite complex depending on the deceased’s family structure.
Distribution where there is a surviving Spouse or Descendants
If a person dies leaving a spouse but no surviving descendants, the entirety of the estate will simply go to the surviving spouse. Descendants are defined in WESA as all lineal descendants (eg. Children, grandchildren, great grandchildren).
If a person dies with descendants but without a surviving spouse, the estate will be distributed equally among the deceased’s descendants per stirpes. This generally means that an equal share of the estate will go to each of the deceased’s children. However, if a person’s child had died before them, that deceased child’s surviving descendants will equally divide their share. To better illustrate, consider the following examples:
- The deceased has no spouse, one surviving child, A, and one deceased child, B, who has two surviving children. One half of the estate would go to A, and one quarter would go to each of B’s children.
- The deceased has no spouse, one surviving child, A, and two deceased children B and C. B has three surviving children, and C has one surviving child. One third of the estate goes to A, one third of the estate goes to C’s child, and 1/9 of the Estate goes to each of B’s three children.
Distribution where there is a Spouse and Descendants
If a person is survived by both a spouse and descendants, then before any distribution the surviving spouse receives all of the deceased’s household furnishings, and a preferential share of the estate. The amount of the preferential share depends on whether the surviving descendants are also descendants of the spouse. If all of the descendants are descendants of the spouse and the deceased, then the spouse’s preferential share is $300,000. However, if any of the surviving descendants are not descendants of the spouse, the spouse’s preferential share is $150,000. If the total value of the estate is less than the spouse’s preferential share, then the spouse receives the entirety of the estate. If the estate still has remaining value after the surviving spouse receives their preferential share, the spouse will receive 50% of the residue, and the deceased’s descendants will divide the other 50% of the residue per stirpes.
Distribution where there is no Spouse or Descendants
If the deceased has no surviving spouse or descendants, then the estate will be distributed to the deceased’s relatives based on the priority schedule set out in section 23 of WESA. Under this priority schedule, each line of relatives must be exhausted before the next line can inherit. The order of distribution is:
- Parents or parent
- Siblings
- Nieces and Nephews
- Great Nieces and Nephews
- Grandparents
- Aunts and Uncles
- Cousins
- Great Grandparents
- Great Aunts and Uncles
It is also important to note that inheritance rights only extend to relatives within four degrees of kinship. A cousin’s child for example, cannot inherit because they are five degrees of kinship away from the deceased: (1) parents, (2) grandparents, (3) uncles/aunts, (4) cousins, and (5) cousin’s children. If there are no surviving relatives within four degrees of the deceased, the entire estate will go to the government.
We hope that this article has helped you gain an understanding of what happens when a person dies without a will. If you need help with your estate planning, or you have had a loved one pass away and you would like assistance in understanding what you and your family may be entitled to, please give us a call at 604-449-7779.