What is Intestacy? – Dying Without a Will

by | Feb 5, 2021 | Wills, Estates and Succession Act

 

What is intestacy?

When someone dies “intestate”, it means that person died without having a valid will. If someone dies without a valid will in British Columbia, then their assets are distributed according to the rules of Wills, Estates, and Succession Act (“WESA”).

When do intestacy rules apply?

Intestacy rules apply when someone dies without leaving a will. These rules can also apply when there is a will, but it has been found invalid (e.g. It hasn’t been signed at the end) or when a will fails to distribute assets of the deceased (e.g. will exists but doesn’t include the distribution of assets).

What happens to the estate if there is no will?

Having a valid will is like having a map for where your assets should go after you die. Then what happens to the deceased’s estate If there is no valid will? Will it all disappear or goes into the lost and found until the right beneficiary comes up? To prevent such chaos in the case of intestacy, the law writes a will for the deceased. Here are some examples of how intestate estate gets distributed according to WESA.

  • A person dies leaving a spouse but no descendants (e.g. children): The spouse inherits everything.
  • A person dies leaving a spouse and descendants in common with that spouse (e.g. the person who died only had children with their spouse): Household furnishings, the first $300,000.00, and one half of the remainder go to the spouse. The remainder is distributed equally among descendants.
  • A person dies leaving a spouse and descendants not in common with the spouse (e.g. the person who died had children with someone other than their spouse): Household furnishings, the first $150,000.00, and one half of the remainder go to the spouse. The remainder then gets distributed equally among descendants.
  • A person dies leaving no spouse, no descendants:  Intestate estate gets distributed in following priority: parents, siblings, nieces and nephews, grand parents, aunts and uncles, great-grandparents, descendants of great-grand parents (until it reaches the 4th generation of relationship), and finally to the government.

In short, if you do not make your own will, then you are basically giving up control over your estate and letting the government write a will for you. The intestacy rules are “one size fits all” and may reflect your wishes for your estate.

Do you really need a will?

Having a set of clear wishes of how you want your assets to be distributed is always better than having the law decide for you. Let’s take a look at a few examples of what you can do in a will:

    • By making a will, you can appoint an executor. It means that you can decide who will be in charge of dealing with your estate after you pass away. Having the right reliable executor is important because dealing with one’s assets is not something that can be done within few hours. Without a will, you don’t get to make this decision. If you die without appointing an executor, someone (usually a family member) will have to step up as an administrator to deal with your estate. They will have to apply to the court for a grant of administration, which may involve additional paperwork and expense.
    •  If you have a spouse and children, you may want to leave everything to your spouse first, and to your children only if your spouse passes away before you do.
    • You may not want to divide your estate equally among your children. Without a will, you have no control over the portions that each person inherits from your estate.
    •  Without a will (or other legal document appointing a guardian of your children), you may not have a guardian appointed to look after your minor children if something unexpected happens to you. It might not be that big of an issue when there is a surviving spouse or the other parent to look after the kids. However, problems may arise if you were the sole guardian of the children at the time of your death. The court will have to step in and appoint a guardian to look after your kids until they turn 19. The court will consider many things before appointing a guardian but you won’t be here to tell the court who you want to be the guardian of your kids, and our judges do not know how to read the mind of a person who has passed away. No matter how much you may have wanted a particular person (e.g. parent, cousin) to be the guardian of your children, it is no longer your decision.  If the person you had in mind wants to apply to become a guardian of your children, then they must follow a special court procedure, which can be complicated and expensive.
    • What if there is a specific piece of jewelry (diamond necklace, for example) that you really want your sister to have when you pass away and there is no will? As mentioned above, having a will is like having a map of where an item should go after you are gone. You might also have something that’s not worth much financially but would be very meaningful to give to someone.
    • You might want some part of your estate be donated to a charity after you pass away. Unless there is a will, the law cannot decide to make donations out of your estate on your behalf. Hoping for someone to recognize your wish and make donations out of your estate under your name when you are gone is not enough. Having a will that talks about making donations to a charity is the right way to do this.
    • People may not know your funeral wishes. We talk to our family and friends about our favourite places to go hike, to shop, to eat all the time. We do not usually talk to them about what should happen to our bodies after we pass away, or whether we want a big funeral.

These are only few examples of why it is important to have a will. There are other, more advanced estate planning techniques as well.

The whole idea of making a will might seem like something you don’t need to worry about yet, but none of us are going to live forever. We cannot prevent death, but we can prevent our loved ones from unnecessary grief, legal fees and court proceedings.

If you have no idea where to start, it’s always good to seek help from a lawyer experienced with wills and estates to guide you thorough the process. Remember that you will not be around after you die to fix any issues that arise with your estate, so it is essential to work with an experienced lawyer.

 

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