Passing away without a will, known as “intestate,” can create confusion and place additional stress on your family during an already difficult time. In British Columbia, if someone dies intestate, their estate is distributed according to the Wills, Estates and Succession Act (WESA). This means the law decides how the estate is distributed, which may not align with your personal wishes.
Understanding how WESA works underscores the importance of having a will to ensure your intentions are carried out and your loved ones are provided for.
How Estates Are Distributed Under WESA
WESA sets out a strict chain of inheritance. This means the law, not the individual, determines who receives the estate.
If there is a spouse and children:
The spouse is entitled to a “preferential share” of the estate.
$300,000 if the children are shared with the spouse.
$150,000 if the children are from another relationship.
If the estate is worth less than the preferential share, the spouse receives everything.
If the estate is worth more than the preferential share, the preferential share is paid to the spouse and the remainder is divided equally between all children.
Children who inherit: Only biological or legally adopted children are recognized under WESA. Step-children do not qualify unless formally adopted.
If there is no spouse or children: The estate passes to other relatives in a specific order of priority. For example, parents take priority over siblings, even if the deceased would have preferred their siblings to inherit.
Guardianship of Minor Children
A will also allows parents to name a guardian for their minor children, ensuring they have a say in who will care for them. Without naming a guardian in a will, if no surviving parent remains, the guardianship is determined by the Provincial Government through the Ministry of Children and Family Development, removing the parent’s ability to make this important decision.
Control Over Trusts and Finances
Without a will, no executor is named to manage the estate. Instead:
The Public Guardian and Trustee holds funds in trust for any minors until they reach the age of 19.
The Trustee decides how those funds are used, which may not align with the deceased’s preferences.
By contrast, a will allows the will-maker to set trust terms, such as delaying access until a later age or specifying how funds should be managed.
Gifting and Funeral Wishes
Charitable gifts or gifts to friends generally cannot be arranged without a will, unless made during the person’s lifetime.
Funeral and burial wishes are not legally binding unless included in a valid will. Executors named in a will are obligated to follow these instructions if reasonable and financially feasible.
Estate Administration
Without a will, no one is automatically authorized to act as executor. Family members must apply to administer the estate, a process that can be complex, time-consuming, and sometimes lead to disputes.
Why Having a Will Matters
Dying without a will can leave loved ones navigating complicated legal rules and, in some cases, disputes in court. This can add emotional and financial strain during an already difficult time. A properly drafted will provides clarity, ensures your wishes are respected, and protects your family’s interests.
The key takeaway is that a will gives you control. Without one, the legislation decides who inherits, who cares for your children, and how your estate is managed.
The content provided here is intended for informational purposes only and is not a substitute for legal advice. Individual circumstances vary, and you should consult a lawyer to obtain advice tailored to your situation. For further guidance, please contact a qualified legal professional.
