When a person in British Columbia dies without a will, that person is said to have died “intestate.” When a person dies leaving a will that does not fully dispose of the estate, and the part that is not dealt with by the will is not otherwise the subject of a gift, that person is said to have died “partially intestate.” In both cases, the statutory rules about intestacy govern who is entitled to share in that estate.
In British Columbia, Part 3 of Wills, Estate and Succession Act (“WESA”), sets out the mandatory legislative scheme for distribution (except where the regime under the Indian Act applies).
If the deceased dies with a surviving spouse, and without descendants and without a will, the surviving spouse shall receive the entire estate.
If the deceased dies without a surviving spouse, and with descendants and without a will, the deceased’s relatives would inherit in the following order:
1. Deceased’s children;
2. Deceased’s grandchildren:
3. Deceased’s further lineal descendants;
4. Deceased’s parents;
5. Deceased’s parents’ children (Deceased’s siblings);
6. Deceased’s nieces and nephews;
7. Deceased’s great-nieces and nephews;
8. Deceased’s grandparents;
9. Deceased’s grandparents’ children (Deceased’s aunts and uncles);
10. Deceased’s cousins;
11. Deceased’s great-grandparents, and
12. Deceased’s great-grandparents’ children.
If the deceased dies with a surviving spouse, and with descendants and without a will, there is a more involved formula for sharing the estate between the surviving spouse and the deceased’s descendants. This formula includes spousal preference on a portion of the value of the estate and division between surviving spouse and descendants. It should be noted, that WESA makes specific provision for the situation where there are two or more spouses. In that circumstance, the spouses share in such proportions as they agree to or, if they cannot agree, in the proportions determined by the court to be just.
Under WESA, “spouse” includes persons who have lived together in a marriage-like relationship for at least 2 years, including persons of the same gender. The definition of a “spouse” grants common law spouses the same entitlements as married spouses.
Moreover, WESA sets out when a person ceases to be a spouse. Two persons cease being spouses of each other for the purposes of this Act if, (a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or (b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
It should be further noted, that WESA provides that children born inside and outside of marriage are treated equally when determining their rights to share in an intestate’s estate.
Finally, when a person dies leaving no spouse or descendants, their estate escheats to the provincial Crown under WESA. Nevertheless, WESA permits a person to apply under the Escheat Act, for the return of all or a portion of such real or personal property on the basis of a legal or moral claim, or as a reward for discovering the right of the provincial Crown to the property.
In short and in conclusion, dying without a will creates uncertainty and an outcome for your estate, that that is unlikely to align with your wishes.
If you have any questions or would like advice related to will preparation, estate planning or probate of an estate, or questions in relation to matters of real estate, corporate law, intellectual property and trust matters, please contact us at 604-688-4900 or by email at paul@barbeau.co or morgan@barbeau.co