Dying without a will No. 1 – who receives the estate?
- Providing the first several levels of beneficiaries for when someone dies without a will.
I’m consulted from time to time about estates where there’s no will.
Typically, the call relates to a younger adult who has died well before their time, without any children, before it has occurred to them that a will might be important.
There’s a weird legal word for dying without a will: “intestate”. In legal circles, we say that the person “died intestate”, and that they have an “intestate estate”.
I dislike using weird legal words because they are unhelpful with understanding legal principles. But in this case, I feel it’s best to become familiar with the word because of how broadly it’s used.
The rules about what happens to an estate when someone dies without a will in British Columbia are appropriately contained under the wonderfully plain language heading: “Distribution of Estate When There is No Will”, which is Part 3, Division 1 of the Wills, Estates and Succession Act.
For your easy access, type “Will act BC” into your browser and I expect it will come up at the top of your list. Then scroll down the list of contents and click on the heading which will take you to the provisions.
You will find what becomes a dizzying list of priorities.
It starts easy. If you die without a will, leaving a spouse and no surviving descendant, your intestate estate goes to your spouse.
It doesn’t matter, incidentally, whether there has been a marriage ceremony, or the spouse is “common-law” according to the applicable legislation.
The next scenario is a deceased leaving a spouse along with surviving descendants.
Household furnishings go to the spouse. Then the spouse gets the first $300,000.00 if the deceased’s descendants are also the spouse’s descendants. If not, the spouse gets the first $150,000.00.
After that priority inheritance goes to the spouse, whatever is left over is divided equally between the spouse on the one hand, and the deceased’s descendants on the other.
Moving down the priority line is an intestate estate where there’s no spouse, but the deceased has descendants. As you would expect, that estate goes to the descendants.
The act explains, in paragraph 24, which descendants inherit and how the estate is divided among those descendants. It’s how you’d expect it to be:
- Let’s say you have three children and all of them are alive when you pass away. Your estate is divided equally among those three children and there’s no need to consider grandchildren.
- If one of your three children has predeceased you, with no children of their own, your estate is divided equally among the remaining two children.
- If the one predeceased child has their own children (your grandchildren), that child’s one-third share is divided equally among those grandchildren.
Using weird legal terminology, this is a per stirpes distribution.
It’s important to note that stepchildren don’t count on intestacy – only biological and adopted children.
All that, and we’ve not yet gotten to the typical scenario I first mentioned, of an unmarried young adult with no children!
In that scenario, the estate goes to the parents. Only biological or adoptive parents, not stepparents.
If no living parents, then to the parents’ descendants following the same per stirpes process.
No living parents or descendants of parents: the estate goes to grandparents.
These rules about who inherits an intestate estate might perfectly fit your wishes, particularly if you have a spouse and no children (everything goes to your spouse), or children and no spouse (everything goes to your children).
But are you leaving those beneficiaries with a mess because you didn’t make a will?
I plan to answer that question in my next column.
