What Happens if I Die Without a Will?

What happens with someone’s estate if they die without a will?

This is a question we are asked regularly, usually by a relative of a deceased individual who does not have a will. This month we will explain some of the basics of the laws in British Columbia relating to dying without a will, also known as “intestacy” or “dying intestate”.

If one dies without a will in British Columbia, the Wills Estates and Succession Act (“WESA”) generally governs how one’s assets are to be distributed. Division 1 of Part 3 of WESA is helpfully titled “Distribution of Estate When There is No Will”. It specifies as follows:

If a person dies leaving a spouse but no children, the spouse receives the entire estate.

If a person dies leaving a spouse and children (or other descendants) the spouse receives the household furnishings and a preferential share of the estate. This preferential share is $300,000 if all descendants of the deceased are also descendants of the spouse, but is only $150,000 if not all descendants of the deceased are also descendants of the spouse. If the net value of the estate is less than or equal to the preferential share, the spouse gets the entire estate. If the net value of the estate is greater than the preferential share, the spouse gets the preferential share and the remainder of the estate is divided, with one half of the remainder going to the spouse and one half being divided among the deceased’s descendants.

If the estate includes a spousal home, the surviving spouse may acquire the spousal home “to satisfy, in whole or in part, the surviving spouse's interest in the estate.”[1] As WESA sets out, if “the fair market value of the deceased person’s interest in the spousal home exceeds the value of the surviving spouse’s interest in the estate … the surviving spouse may purchase the remainder of the deceased person’s interest.”[2]

If the spousal home and other estate assets together are not sufficient to satisfy the interests of all the deceased’s descendants entitled to a share in the estate without selling the spousal home, the surviving spouse can attempt to demonstrate to the court that:

• the surviving spouse was ordinarily resident in the spousal home at the time of death;
• the surviving spouse has a sufficiently established connection with the spousal home or community members in the vicinity of the spousal home; and
• purchasing the spousal home would impose a significant financial hardship on the surviving spouse,

then the court may make an order doing one or more of the following:

• giving the surviving spouse the interest in the spousal home that the deceased had at death;
• setting the amount of money the surviving spouse must pay to the deceased’s descendants to satisfy their interest in the estate;
• converting the remaining unpaid interest of the descendants into a registrable charge against the title to the surviving spouse’s interest in the spousal home and determining the value of that charge; and
• determining an interest rate for the amount the descendants are entitled to.

WESA also recognizes a possibility that many have not considered: the possibility that one may die with more than one spouse. WESA considers two people to be spouses if they were both alive immediately before the date of death of one of them and they were married to each other, or they had lived with each other in a marriage-like relationship for at least two years. A person may therefore have more than one spouse for the purposes of WESA. For example, a person may have two common-law spouses, or one married spouse and one common-law spouse. In such circumstances, the two spouses are to “share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.”[3]

The points discussed above provide only a brief overview of the law that may apply to the estate of someone who dies without a will, but offer a general idea of what can happen. In our experience, most people do not want to leave what happens to their assets to this legislated default regime. Despite this, it is estimated that nearly half of Canadians do not have a will in place. Sadly, discovering that a loved one died without a will, and that the intestacy rules of WESA will apply to the estate, can lead to significant surprise and disappointment among the surviving family members.

If you or someone you love has any questions about wills and estate planning, or are the spouse or descendant of an individual who has passed without a will, getting in touch with a lawyer with wills and estates experience is usually a good idea. If you would like to speak with one of us, please get in touch.

[1] Wills, Estates and Succession Act, SBC 2009, c 13, s 26(2).

[2] Ibid at s 31(1)

[3] Ibid at s 22(2).