Let’s look at a brief – and far from complete – breakdown of what generally happens in this situation.
In British Columbia, a deceased person’s estate is distributed according to the Wills, Estate and Succession Act (“WESA”). This Act provides a clear breakdown of which relatives take priority and attempts to create what the law makers considered a fair and equitable distribution of assets in the absence of the deceased’s explicit wishes. However, this distribution may be very different from what you would have chosen and can also be complicated by the definitions of some terms and how your assets are structured.
Distribution Among Spouses
Under WESA, if there are no surviving children and the deceased is married, the entire estate passes to the surviving spouse – regardless of how long you were married or how rocky the relationship was. If there is a surviving spouse and surviving children, however, the spouse receives the household furnishings and a preferential share of the estate (which varies between $300,000 and $150,000 depending on whether all the children are biological children of both the spouse and deceased), as well as half of the remainder of the estate.
Of course, in BC, one can technically have two spouses. If this is the situation, both spouses will presumably split it, but this is a situation ripe for litigation.
Distribution Among Children and Descendants
If there are children and no spouse, the children will typically split the estate. If a child has passed before the deceased and has their own children (the deceased’s grandchildren), those grandchildren stand to inherit the share that their parent would have received.
Other Relatives
If there are no children and no descendants, the estate typically reverts to surviving parents, and then to descendants of those parents (ie. the deceased’s siblings and their children). If that fails, the intestacy laws continue following the family line back, though there is a point at which the estate goes to the government.
Administering the Estate
Regardless of whether there is a will or not, if there are assets to be distributed, someone still needs to apply to administer the estate. For an intestate estate, this person is called an administrator (as opposed to an executor when there is a will). Who this is can vary based upon consent and who is willing to do it, but WESA does provide a chain of priority which starts with the spouse, then children, then parents, and so on. Of course, if there are multiple people on the same level of priority both seeking to be administrator this can still result in litigation.
Complications to Watch Out For
One issue that can occur when trying to anticipate the breakdown of an intestate estate is how terms are defined. A ‘spouse’ for the purpose of WESA may not be a spouse as far as a lay person is concerned and vice versa. Does ‘children’ include only biological children or does it include adopted children? What about step-children? These questions are beyond the scope of this article, but nonetheless it can be important to verify the answers to these questions before either relying on the intestacy rules for your own will or attempting to administer an estate on your own.
Seek Legal Guidance
Given the intricacies of intestate succession, seeking legal counsel is strongly recommended for both those who find themselves inheriting assets through intestate succession and those looking to plan their own estate. An experienced estate lawyer can help navigate the complexities of estate administration, provide guidance on family dynamics, and ensure that the distribution process is carried out in accordance with the law and the deceased’s intentions, as much as possible.
Find out more about our estate planning services and book a consultation here.
Stay up to date with the latest legal scoop by signing up for our newsletter.
Disclaimer: This blog post is for informational purposes only and should not be construed as financial or legal advice. Consult with qualified professionals to create a personalized estate plan suitable for your specific circumstances.
