“What will happen to my children if I die without a will?”
In most wills, the will-maker usually appoints an executor, a guardian for their kids, and provides directions on how their assets should be distributed. Dying without a will means that none of the above has been taken care of.
If you are a parent, you probably wonder what will happen to your children if you die without a will.
♦ Who Will Look After the Kids?
This is what will probably happen to your kids in terms of their guardians.
First, we should take a look at what it means to be a guardian. Guardians are the ones who are responsible for raising and caring for the children. Being a child’s guardian means that they can exercise parental responsibilities in the best interests of the child they are responsible for. Parental responsibilities include deciding where a child goes to school, where a child resides, and how a child gets treated when they become sick.
Parents are generally guardians of the child with some exceptions (e.g. a parent who has never resided with and never provided care for the child). Even after parents separate, both will still be guardians unless there is a specific separation agreement or court order that says otherwise. Stepparents, though, do not automatically become guardians. Under the Family Law Act, if a guardian of the child marries or enters into a marriage-like relationship with a person who is not the guardian of the child, the person does not automatically become a guardian. It means that if you marry someone who is not the other parent, no matter how long your spouse has lived with you and your children, your spouse cannot exercise parental responsibilities like you unless there has been a special order. Also, grandparents are not guardians for their grandchildren. For more information, read our article on Guardianship, Parental Responsibilities and Parenting Time Under British Columbia’s Family Law Act.
Understanding the concept of guardianship is very important. We often mistakenly believe that when we die, guardianship will automatically pass on to our living parents (who will be grandparents for the children) or to the surviving spouse (Who may not be the other parent of your children). In fact, it does not. That automatic transition only happens when the other guardian of your kids is still alive at the time of your death. In that case, that person will become the sole guardian of your children.
If you die without a will, and you are the only guardian, government agencies will become your kid’s guardians. If your parents want to be guardians of their grandchildren, they will need to apply for a court order. If a stepparent wants to be their guardian, the stepparent needs to apply for a court order. Applying for a court order may not be a simple process. They will have to be prepared to do a lot of paperwork. Additionally, they might have to seek help from a professional, meaning that there may be some legal fees involved.
♦ Will My Kids Be Able to Inherit from My Estate?
Now, let’s take a look at what will happen to your kids in terms of their inheritance.
If you die without a will, your estate will be distributed among your family according to the rules of Wills, Estates, and Succession Act (“WESA”). For more information, read our blog article on Intestacy. In British Columbia, a person must be 19 years or older to receive an inheritance. This does not mean that your minor kids will not be entitled to anything. They will get their share when they turn the age of majority (19 years old in British Columbia). Until then, their share will be held in trust. With a will, usually, the executor or anyone appointed as a trustee will be in charge of the trust until the minor gets their share. But because we are talking about a scenario in which you died without having a will, The Public Guardian and Trustee of British Columbia(“PGT”) will act as a trustee. Your children will get their whole share when they turn 19.
However, if you have a will, here are some things that could be done differently. First of all, getting their shares when they turn the age of majority. Do you remember when you were 19? Some people are just not mature enough to handle a large sum of money at that age. I wasn’t that bright with handling money when I was 19, and maybe you were like me too. It is not that we were dumb but learning how to spend money wisely is something that we learn as we get older. I cannot imagine 19-year-old me suddenly getting a lot of money and being accountable for it. The point is the whole idea of your children getting all their shares at 19 might be something that makes you feel a bit uneasy. However, with a will, you can always change the age that your children get their shares. You can make it 21 instead of 19. You can even have a clause that lets your trustee pay your children in chunks instead of giving them access to the whole share. That way, you will know that they will not be able to spend it all at once.
Second, let’s talk about the trustee. I mentioned that if you die without a will, the PGT will act as a trustee because there is no one appointed to act as a trustee. A trustee is someone that is given the power to administer and hold the legal ownership of assets for the benefit of the third party. In this case, the third party would be your children. Until your children turn the age of majority, your children’s share of your assets will be held in a trust administered by the PGT. This can be a bit troublesome for several reasons. If their guardian wants to use part of their share before they turn 19, they will have to request it from the PGT. Since your children’s trusts will not be the only trust the PGT is in charge of, it might take a while to hear back from them. If the PGT declines the request, the guardian can still challenge their denial in court, but it will not be easy. If your family member wants to take over the role as a trustee, they will have to apply to court. Once again, going to court can be expensive. There will be a lot of paperwork to do, which means that it will not be something that can be done just overnight. Despite all the trouble of going through a court procedure, the court may not always agree with the family member’s request to be the trustee.
If You Are Thinking about Making a Will, Don’t Hesitate
Having a will can prevent our loved ones from unnecessary grief, legal fees and court proceedings. If you feel uncomfortable about making a will because you have no idea where to start, remember that you are not alone. You can always go and seek help from professionals who are experienced in wills and estates. Talk to them about your current situation and what you want to be done for your children.
We are often told by others to appreciate and live like we only live once but easily neglect the fact that we only die once too. Think of your life as a book. Think of having a will as the period mark you have at the end of your last sentence. You certainly do not want your book to end with an incomplete sentence, leaving your children to wonder what’s supposed to happen after the book ends. Right?
Brennan J. Clarkson has helped clients with family law and estate law cases since 2008. He practices in Port Moody, British Columbia at Clarkson Law Corporation.
Contact Clarkson Law Corporation today for a free 30 minute consultation.