Dying without a Will
Dying Without a Will – Intestacy Distribution
When a person dies in British Columbia without a valid Will they are deemed to have died “intestate”. Since the person who died does not have a Will that distributes their property, there has to be a mechanism for the distribution of that property. That mechanism is found in the Wills, Estate and Succession Act of British Columbia (“WESA”).
Intestacy distribution depends on the intestate’s “next of kin”. If the intestate has a spouse (which includes legally married spouses and those common law spouses that meet the definition under WESA) but no other descendants (which means all lineal descendants through all generations), the spouse would receive the entire estate from the intestate. This is governed by s. 20 of the WESA.
S.21 of the WESA covers the scenario of an intestate leaving a spouse and descendants.
21(2) If a person dies without a Will leaving a spouse and surviving descendants, the following must be distributed from the intestate estate to the spouse:
(a) the household furnishings;
(b) a preferential share of the intestate estate in accordance with subsection (3) or (4).
(3) If all descendants referred to in subsection (2) are descendants of both the intestate and the spouse, the preferential share of the spouse is $300,000, or a greater amount if prescribed.
(4) If all descendants referred to in subsection (2) are not common to the intestate and the spouse, the preferential share of the spouse is $150,000, or a greater amount if prescribed.
(5) If the net value of an intestate estate is less than the spouse’s preferential share under subsection (3) or (4), the intestate estate must be distributed to the spouse.
(6) If the net value of an intestate estate is the same as or greater than the spouse’s preferential share under subsection (3) or (4),
(a) the spouse has a charge on the intestate estate for the amount of the spouse’s preferential share under subsection (3) or (4), and
(b) the residue of the intestate estate, after satisfaction of the spouse’s preferential share, must be distributed as follows:
(i) one half to the spouse;
(ii) one half to the intestate’s descendants.
The last scenario that will be discussed in this blog will be if the intestate leaves no spouse but leaves descendants or relatives. This scenario is governed by s.23 of WESA.
When there is no spouse the intestate’s estate shall be distributed firstly to the intestate’s descendants. If there are no descendants then the estate will be distributed to the intestate’s parents. If there are no parents then the estate will be distributed to the descendants of the intestates parents which will include brothers and sisters of the intestate and then to the nieces and nephews of the intestate. If there are no descendants of the parents of the intestate the estate shall be distributed to the grandparents of the intestate. If there are no grandparents, the estate shall be distributed to the great-grandparents of the intestate and, finally, if there are no relatives of the intestate living, the estate shall be distributed to the government.
As the above indicates, intestacy distribution can be intricate and convoluted. If you have any questions regarding the law surrounding estates feel free to contact Heath Law LLP.