A person dying without a legally valid will is deemed to have
died "intestate". Dying intestate does not mean that the
person's estate will go to the government, but it does mean
that the person will lose control of who will benefit from the
estate and who will manage the estate.
The Wills, Estates and Succession Act
("WESA") contains intestacy rules, which are
essentially government-imposed rules on the distribution of a
person's assets when a person dies without leaving a legally
valid will. If you have not made a will, then it is important that
you know the intestacy rules, as they determine the recipients of
The distribution is straightforward if the person is survived by
a spouse but there is no surviving descendent. In such a case, the
estate all goes to the spouse. Similarly, if the person leaves no
spouse but is survived by descendants, then the estate all goes to
the descendants to be shared by the descendants per
stirpes. The term "descendant" is defined in
WESA to mean all lineal descendants (e.g. children,
grandchildren, great grandchildren) through all generations.
The distribution is more complicated when the person is survived
by both spouse and descendants. In those circumstances, the spouse
will first receive the household furnishing and the spousal
preferential share. Only after the aforementioned share of the
surviving spouse, the spouse and the descendants will share the
remainder of the estate in that the spouse will receive ½ of
the remainder of the estate, and the descendants will share per
stirpes the other ½ of the remainder of the estate. The
amount of the spousal preferential share will depend on whether all
of the surviving descendants are common descendants of both the
deceased person and the surviving spouse. If they are, then the
surviving spouse will receive $300,000.00 as the spousal
preferential share. If there is at least one descendant that is not
the descendant of the surviving spouse, then the surviving spouse
will receive $150,000.00 as the spousal preferential share.
If the person died leaving no spouse or descendant, then the
estate will go to the person's other relatives based on a
complicated "parentelic" distribution schedule. Under the
parentelic distribution schedule, the line of the closest common
ancestor is exhausted before other relatives will share in the
estate. For instance, if there is no surviving spouse and
descendant, the estate will go to the deceased's surviving
parent(s). If there are no surviving parents, then it will go to
the descendants of the deceased's parents (e.g. the
deceased's siblings and if no siblings, then the deceased's
nephews/nieces). If there are no surviving descendants of the
deceased's parents, then the estate will go to the surviving
grandparents or surviving descendants of the deceased's
grandparents (e.g. the deceased's aunts/uncles and if no
aunts/uncles, then the deceased's 1st cousins).
Under the intestacy rules, the degree of relationship is
restricted to 4th degree of relationship. Anyone, except
for lineal descendants of the deceased, beyond the 4th
degree of relationship is deemed to have predeceased the deceased
person. If a person died leaving no will and has no survivors
within the 4th degree of relationship (except for lineal
descendants), then the estate will go to the government.
As you can see, although dying intestate does not mean that your
estate will go to the government automatically, it does mean that
you will lose control of who gets what from your estate. In
addition, it may cause delay in winding up your estate as someone
will need to apply to Court to be appointed as the administrator of
your estate. This also means additional legal expenses. If the
distribution scheme as discussed in this article is not what you
want, then it is time for you to consider estate planning,
including having a will in place.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
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