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Wills Variation

Estate Law: What Happens if Someone Passes Away with No Will

By Candace Cho

Under British Columbia’s estate law, if a person passes away without a will, then that person is said to have passed away ‘intestate’ (i.e., without a will). When that happens, British Columbia’s estate law dictates how the intestate estate would be distributed.

The following is a brief overview of who would inherit the intestate estate based on sections 20-25 of the Wills, Estates and Succession Act (“WESA”).

Does the deceased have a spouse?

If the deceased is survived by a spouse, then that spouse is entitled to the intestate estate. The amount that the spouse is entitled to depends on whether the deceased has any surviving descendants. If the deceased does not have any surviving descendants, then the entire intestate estate must be distributed to the spouse (WESA s. 20).

Does the deceased have surviving descendants?

If the deceased has surviving descendants, then the deceased’s spouse and surviving descendants would share the intestate estate. The amount the spouse would be entitled to receive would depend on:

  1. The “net value of an intestate estate” (defined in s.21(1) of WESA as the value of the intestate estate less household furnishings, charges, debts, funeral and administration expenses, and probate fees), and
  2. Whether the surviving descendants are the common descendants of both the deceased and the spouse (in other words, whether the descendants are the children of the deceased and the spouse).

Who are the deceased’s ‘surviving descendants’?

The deceased’s surviving descendants are all “lineal descendants” through all generations (WESA s.1(1)). In other words, the deceased’s children and grandchildren, whether related by blood, or legally adopted by the deceased.

Distribution if there are surviving descendants

If there are surviving descendants, then one of three different distributions would occur depending if there are:

  1. Surviving spouse and common descendants;
  2. Surviving spouse and descendants who are not common to both the spouse and the deceased; or
  3. No surviving spouse but there are surviving descendants.

Distribution if there are surviving spouse and common descendants

How much would the surviving spouse receive?

In this scenario, the surviving spouse would receive:

  1. Household furnishings (WESA 21(2)(a)), defined as “personal property usually associated with the enjoyment by the spouses of the spouse home” (WESA s.21(1));
  2. Preferential share of $300,000 (WESA 21(3)); and
  3. If the net value of an estate is equal or greater than $300,000, then the spouse would be entitled to 50% of the intestate estate less preferential share of $300,000 (WESA 21(6)).

However, if the net value of an estate is less than $300,000, then the estate would not have enough funds to satisfy the preferential share. In that case, the entirety of the intestate estate would be distributed to the spouse (WESA s.21(5)).

How much would the surviving descendants receive?

The surviving descendants would receive either:

  1. If the net value of the estate is less than $300,000, then the surviving descendants would receive nothing as the entire estate would be distributed to the deceased’s surviving spouse, or
  2. If the net value of the estate is greater than $300,000, then the surviving descendants would receive 50% of the residue of the testate estate, less the preferential share of $300,000 to the spouse.

Example of distribution

If the intestate estate has a net value of $500,000, then:

  1. The surviving spouse would receive:
    1. Household furnishings;
    2. Preferential share of $300,000; and
    3. 50% of the remaining $200,000 (in other words, $100,000).
  2. The surviving descendants would receive:
    1. 50% of the remaining $200,000 (in other words, $100,000). This amount would then be split equally among all the surviving descendants. For example, if there are 4 surviving descendants, then each would receive $25,000.

Distribution if there are surviving spouse and descendants not-common to both the spouse and deceased

How much would the surviving spouse receive?

In this scenario, the surviving spouse would receive:

  1. Household furnishings (WESA 21(2)(a));
  2. Preferential share of $150,000 (WESA 21(4)); and
  3. If the net value of an estate is equal or greater than $150,000, then the spouse would be entitled to 50% of the intestate estate, less the preferential share of $150,000 (WESA 21(6)).

Similar to the above, if the net value of the estate is less than $150,000, then the spouse would receive the entirety of the intestate estate.

How much would the descendants not-common to both the spouse and deceased receive?

The surviving descendants would receive either:

  1. If the net value of the estate is less than $150,000, then the surviving descendants would receive nothing as the entirety of the intestate estate would be distributed to the deceased’s surviving spouse, or
  2. If the net value of the estate is greater than $150,000, then the surviving descendants would receive 50% of the residue of the testate estate, less the preferential share of $150,000 to the spouse.

Example of distribution

If the intestate estate has a net value of $500,000, then:

  1. The surviving spouse would receive:
    1. Household furnishings;
    2. Preferential share of $150,000; and
    3. 50% of the remaining $350,000 (in other words, $175,000).
  2. The surviving descendants would receive:
    1. 50% of the remaining $350,000 (in other words, $175,000). This amount would then be split equally among all the surviving descendants. For example, if there are 4 surviving descendants, then each would receive $43,750.

Distribution if there are no surviving spouse but there are surviving descendants

If there are surviving descendants, then the estate must be distributed to all the surviving descendants equally (WESA s.23(2)(a)).

What if there are no surviving spouse or descendants?

If there are no surviving spouse or descendants, then the intestate estate would be subject to a ‘parentelic distribution’, meaning the closest ancestors to the deceased would receive the entire intestate estate. The following is the order of closeness under the parentelic system from closest to farthest:

  1. Deceased’s parents;
  2. Deceased’s brothers and sisters;
  3. Deceased’s grandparents;
  4. Deceased’s great-grandparents; or
  5. If the deceased is not survived by his or her parents, siblings, grandparents, or great-grandparents, then the intestate estate would be forfeited to the government.

As illustrated above, only in certain circumstances would the intestate estate forfeit to the government. However, to alleviate any concerns on the distribution of an estate, it is recommended that a will be written. By having a will, the testator can choose how his or her estate should be distributed. Of course, a will can still be contested after the testator has passed away. In that regard, please see our latest post on Estate Litigation: common reasons for contesting a will in BC.