What is Escheat?
Escheat occurs when the assets of an estate pass to the provincial government because a person has died without a Will and without any surviving:
- spouse, including common-law partner;
- descendants;
- parents or descendants of a parent;
- grandparents or descendants of a grandparent; or
- great-grandparents or descendants of a great-grandparent.1
Any relative who is more than four degrees of relationship to the deceased is deemed to have predeceased the deceased.2 When property escheats, it is transferred to the Attorney General who takes possession in the name of the provincial government.
Claiming Property from the Provincial Government
After property has escheated, the Attorney General has discretion to transfer the property to a person:
- who has a legal or moral claim on the person to whom the property belonged;
- to carry into effect any disposition of the property which the owner may have contemplated; or
- to reward a person who discovers the escheat.3
To claim escheated property, a person can apply to the Attorney General's office for a ministerial order that the property be transferred to that person. As part of the application process, the person may be required to make a statutory declaration setting out the background information and the basis of the claim for the property. Additionally, they may be required to provide a genealogy report confirming that the estate does, in fact, escheat to the Attorney General.
The applicant must also pay a filling fee (currently $300.00).
Avoiding Escheat
The best way to ensure that your estate passes to your intended beneficiaries instead of escheating to the provincial government is to make a Will. As an additional precaution, a will-maker may wish to consider making a statutory declaration setting out their family tree to facilitate the identification of beneficiaries and intestate successors at their death.
Footnotes
1.Wills, Estates and Succession Act, SBC 2009 c 13, s 23.
2.Wills, Estates and Succession Act, SBC 2009 c 13, s 23.
3.Escheat Act, RSBC 1996 c 120, s 5 and 8.
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.
