Dying Without A Will

Married Person

Unmarried Person

When a married person with children dies without a will, pursuant to section 21 of the Wills, Estates and Succession Act (British Columbia) (“WESA”), the division of assets is dependent on the relationship of the children to the deceased and surviving spouse.

If the deceased leaves behind a surviving spouse and children who are all children of both the deceased and surviving spouse, the surviving spouse will receive preferential treatment of $300,000, with the residue of the estate split evenly between the surviving spouse (50%) and children (50%).

If not all surviving children are children of both the deceased and surviving spouse, the surviving spouse will receive preferential treatment of $150,000, with the residue of the estate split evenly between the surviving spouse (50%) and children (50%).

If there is a spousal home (generally a home/strata/manufactured home in which the deceased person and his or her spouse were ordinarily resident), the provisions of Part 3, Division 2, sections 26 through 35 of the WESA must also be taken into consideration in dealing with the spousal home.

Spouse and descendants

(1) In this section:

“household furnishings” means personal property usually associated with the enjoyment by the spouses of the spousal home;

“net value of an intestate estate” means the value of an intestate estate after deducting from its fair market value, both inside and outside British Columbia,

(a) the value of household furnishings distributed to a spouse under subsection (2), and

(b) charges, debts, funeral and administration expenses, and fees under the Probate Fee Act, payable from the estate.

(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

(b) What is the division for an unmarried person with no children?

Section 23(2)(b) through (f) of the WESA detail the distribution of the estate for an unmarried person with no children (assuming no lineal descendants).

23(2) Subject to subsection (3) and section 24, if a person dies without leaving a surviving spouse, the intestate estate must be distributed

(a) to the intestate's descendants,

(b) if there is no surviving descendant, to the intestate's parents in equal shares or to the intestate's surviving parent,

(c) if there is no surviving descendant or parent, to the descendants of the intestate's parents or parent,

(d) if there is no surviving descendant, parent or descendant of a parent, but the intestate is survived by one or more grandparents or descendants of grandparents,

(i) an equal part to the surviving parents or parent of each of the intestate's parents, in equal shares of the part, but if a parent of the intestate has no surviving parents, that part to the descendants of those deceased grandparents, and

 (ii) for the purpose of subparagraph (i), a part is determined by dividing the estate by the number of parents of the intestate

(A) who have a surviving parent, or

(B) who do not have a surviving parent but whose deceased parents have a surviving descendant,

(e) if there is no surviving descendant, parent, descendant of a parent, grandparent or descendant of a grandparent, but the intestate is survived by one or more great-grandparents or descendants of great-grandparents,

(i) an equal part to the surviving grandparents or grandparent of each of the intestate's parents, in equal shares of the part, but if a grandparent of the intestate has no surviving parents, that part to the descendants of those deceased great-grandparents, and

(ii) for the purpose of subparagraph (i), a part is determined by dividing the estate by the number of parents of the intestate

(A) who have a surviving grandparent, or

(B) who do not have a surviving grandparent but whose deceased grandparents have a surviving descendant, or

(f) if there is no person who is entitled under paragraphs (a) to (e), the whole intestate estate passes to the government and is subject to the Escheat Act.

3. For the purposes of this section, persons of the 5th or greater degree of relationship to the intestate are conclusively deemed to have predeceased the intestate, and any part of the intestate estate to which those persons would otherwise be entitled must be distributed to other descendants entitled to the estate.