Stephen Hsia is a lawyer with Fasken in Vancouver. He practises in the area of wills, estates, trusts, personal and tax planning, and charitable giving. Stephen gives advice to a broad range of clients, from young professionals and retirees to family businesses and large organizations. He takes a personal approach in designing solutions for each client, recognizing that no two clients or families are the same. Stephen is proficient in Mandarin and conversational in French. After living and working across Canada, the US, and Asia, Stephen returned home in 2014 with a goal of building up strong families and organizations here in British Columbia, united in a common family and corporate vision.
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Know what to do if someone dies without a will in British Columbia.
If someone dies without a will, they’re said to have died intestate. Those left behind may feel they have no guidance on what to do with the deceased’s property. But the law determines how it will get distributed, and who has the right to settle the estate.
What you should know
The law says who gets the deceased’s estate
If someone in BC dies without a will, the law says how their estate will be divided. A person’s estate is made up of the property and belongings they own upon their death. There are some exceptions (such as property held in joint tenancy). The estate will be divided according to the mix of relatives left behind.
The first step is to determine whether the deceased had a spouse
“My grandparents never married. When Grandpa got sick, he had to move out of the house they’d shared for 40 years and into a care home. It was difficult for both of them. And there was never an intention to separate. They were in it for the long haul, even if they had to live apart. Grandpa died without a will. Even though they didn’t live together at the end, Nan was still considered to be his spouse under the law.”
– Justin, Victoria
Under estates law in BC, people are considered spouses if they were:
- married (and not separated) when the deceased passed away, or
- in a “marriage-like relationship” for at least two years prior to death, unless one of them ended the relationship.
“Marriage-like relationships” include common-law unions. In these arrangements, the two people:
- needn’t have been living together
- must have been in a marriage-like relationship for two years (though not necessarily the two years immediately before the deceased’s death)
Sometimes, it’s not clear whether two people are spouses. If you’re not sure whether someone is the deceased’s spouse, or if you think the deceased might have been separated, it’s best to talk to a lawyer. It makes a big difference to how the estate should be distributed.
If the deceased had a spouse
“My husband Dave died without a will. We didn’t have any kids together. Dave had a daughter Eve who passed away years ago. Eve had a son, Silas — Dave’s grandson. Dave hadn’t seen his grandson since Eve died, for complicated reasons.
I wondered whether any of Dave’s money should go to Silas. My lawyer told me that grandchildren get a share of the estate if their parent, who has died, was a child of the deceased.
I got the first $150,000 of Dave’s estate, and then split the remainder with Silas.”
– Nada, Surrey
Under the law, when the deceased dies leaving a:
- Spouse and no children. The entire estate goes to the spouse.
- Spouse and children with that spouse. The spouse gets the first $300,000 of the estate and half of the remainder. The other half is divided equally among the children.
- Spouse and children from a prior relationship. The spouse gets the first $150,000 of the estate and half of the remainder. The other half is divided equally among the children.
It’s possible to have more than one spouse under BC estates law. In this case, they split the spouse’s share equally (unless they agree or a court decides differently).
If your spouse died without a will, the law says you have the right to acquire the spousal home. The deceased must have owned the home, and you must have ordinarily lived in it together. The home will be counted towards your share of the estate. In some circumstances, you may have to pay occupancy costs or even pay some money to the other heirs. It’s best to speak to a lawyer about your particular circumstances.
If the deceased didn’t have a spouse
If the deceased had no spouse, then the estate is divided among their children and sometimes their grandchildren or other descendants. A descendant means a surviving person of the generation nearest to the deceased.
In the example below, Monica died without a will. Her separated spouse receives nothing. Two of her adult children are still alive, so they each get a one-third share. Monica’s daughter Charlie died before her, so Charlie’s kids split the remaining one-third of the estate.
If the deceased had no spouse and no descendants, then the estate goes to their parents. If their parents aren’t alive, it’s divided equally among their brothers and sisters.
There are other rules to figure out which next of kin may receive the estate if the deceased had no surviving spouse, descendants, parents, or siblings.
If the deceased has no next of kin, the estate goes to the provincial government.
Every adult who owns assets should have a will. It gives you control over who gets how much of your property after you die. Learn more about preparing a will.
The court may need to appoint someone to deal with the estate
When someone makes a will, they get to choose an executor. This is the person who manages their affairs after they die.
If someone dies without a will, the person who does this job is called the administrator. Someone usually has to apply to the court to get the legal authority to do so.
The people who can apply to administer the estate are listed under the law in order of priority. The spouse of the deceased is the first person who can apply, or they can nominate someone else to apply.
Learn who can apply for a grant of administration and how to apply.
The court may need to appoint a guardian for minor children
With a will, a person can appoint a guardian to look after any young children they leave behind after they die. Parents are usually guardians, but not always. This Legal Aid BC page explains who can be a guardian.
What if someone dies without appointing a guardian for their children under 19?
- If there’s a surviving guardian, they’ll become the child's guardian. A surviving parent who isn’t the child’s guardian must apply to the court to become guardian.
- If there’s no surviving guardian, the Public Guardian and Trustee will become the estate guardian. This means they’re responsible for managing the child’s money and legal affairs.
At the same time, the Ministry of Children & Family Development will become the child’s personal guardian. This is the person who has physical custody of the child, and must care for them. The ministry remains guardian until someone else becomes the guardian. The new guardian may be appointed in a court order or have applied to adopt the child. In the meantime, the ministry may place the child in foster care or to live with a relative or friend. The court decides what arrangements are in the child's best interests.
Many people think that if both parents die, a family member will simply be able to step in and take care of young children. This is often the eventual result. But there are steps that must be taken to ensure that the right person is granted guardianship. The court’s opinion on who the right person is may differ from yours. Your best chance of ensuring that the “right person” (in your eyes) is chosen is to name a guardian in your will.
A minor’s share must be paid to the Public Guardian and Trustee
If someone dies without a will, a child under 19 might inherit a share of the estate. The law in BC says the minor’s share must be paid to the Public Guardian and Trustee of BC. This public body will hold the minor’s share in the estate until they’re 19. In the meantime, the child’s parent or guardian can apply to the Public Guardian and Trustee to release funds for basic expenses like food, clothing, and education. When the minor turns 19, they can demand all their money — no matter how much it is.
By preparing a will, a person can create a trust for any gifts left to minor children or others who might be under 19 when the will-maker dies. A trustee, chosen by the will-maker, can manage the minor’s share for the minor’s benefit until they turn 19 (or a later age if desired).
The law says who’s responsible for arranging the funeral and burial
The law in BC says who’s responsible for arranging the funeral and paying the funeral expenses from the deceased’s estate.
If the deceased didn’t name an executor under a will, the job falls to the deceased’s spouse. If there’s no spouse or they’re not willing to step up, the law sets out a priority order for who to approach. Next in line are the deceased’s adult children, then adult grandchildren, a parent, and so on.
What if the right passes to people of equal rank (such as adult children)? The law says they can decide among themselves who should do it. If they can’t agree, priority descends in order of age.
Who can help
The Public Guardian and Trustee of British Columbia is a government office that may agree to administer an estate when someone dies without a will.
When a loved one dies, someone has to deal with their property and debts. Learn how to settle an estate.
A step-by-step guide to applying for a grant of probate, confirming a will to be legally valid.
Learn how to prepare a will that’s valid under the law.
Are you making changes to your will during the current coronavirus pandemic? See our information on preparing or updating your will during coronavirus. We walk you through some important things to consider at this time. As well, we provide tips for how to sign and witness a will safely.
Test your knowledge: Preparing your will
You can make a will on your own, or have a lawyer or a notary public help you. There are rules that must be followed, no matter how simple the will. Learn how to prepare a will that’s valid under the law.
Things to consider when choosing an executor.
With this quick checklist, you can check whether you’ve covered your bases when creating your will.
Answers to common questions asked about the forms used to apply for probate.
Learn the importance of preparing a will.
A will is a legal document that explains what you want done with your property after you die. Preparing a will can ensure the things you own go to the people you want. And those close to you can feel confident they’re respecting your wishes.
Why you should prepare a will
"My sisters both want me to leave them my opal ring. It belonged to our mother and is a family heirloom. Unless I say in a will who the ring should go to, I just know there’ll be a fight about it later."
– Maria, Nanaimo
A will is a map for those you leave behind. Having a clear statement of your wishes gives you some control over who gets what after you’re gone. And it helps your loved ones feel confident they’re carrying out those wishes. Knowing your intentions will save them time, stress and money at a difficult time.
Preparing a will lets you choose an executor. This is a person who carries out the instructions in the will. If you’re a parent, you can also appoint a guardian to care for any children under age 19 after your death.
If you die without a will
Without a will, those close to you will be left guessing about what you would have wanted. With no proof of your wishes, the law kicks in. Your property is divvied up according to rules set out in the Wills, Estates and Succession Act.
The law may not reflect your wishes about who you want to inherit your property. For example:
- If you have a spouse but no children, your estate will pass to your spouse.
- If you have a spouse and children — all of whom are also your spouse’s children — your spouse will get the first $300,000 of your estate and half of what’s left over. The other half will be divided equally among the children.
- If you have no spouse or children, your estate will be distributed to descendants, parents, or other relatives. If no relatives can be found, the estate will go to the government.
If you die without a will, someone may need to apply to court to become administrator of the estate. Once approved, the administrator has the authority to distribute your assets. The administrator is often a spouse or adult child. If no one steps forward, the Public Guardian and Trustee may apply.
You don’t have to prepare a will
"My sister Susan died without a will. A year before, she told me what she wanted done with the things she owned. A valuable painting she owned was supposed to go to me. But without a will, there’s no way to prove it. So everything is going to her daughter, Amy."
– Janet, Vernon
Under the law, you don’t have to prepare a will. But it’s a good idea. Preparing a will helps ensure fairness, accuracy, and peace of mind all around. It makes sure your wishes are respected and your loved ones are taken care of.
A will doesn’t deal with everything you own
"My wife died suddenly. She'd always been clear that she wanted to leave all her things to me and the kids. So she left us everything in her will. But most of her wealth was in two investment properties. She held these jointly with her parents because they’d pitched in a bit of money to help her. She had no idea that the hard-earned money she'd put in herself would flow to her parents (not to me and the kids!) when she died. Unfortunately, there wasn’t much left for the will to deal with."
– Steve, Richmond
A will deals with your estate. But there are some assets that are not considered estate assets.
A will generally only covers property you own exclusively, not property you share. So, for example, property you own in joint tenancy with someone else — such as a home or a joint bank account — generally isn’t inherited through a will. When you die, such shared property usually goes to the surviving joint tenant(s). In most cases, this property isn’t included in your estate. It’s said to “pass outside the will.”
You can also own property with someone else as a tenant-in-common. When you die, your share doesn’t automatically go to the other owner. You can gift your share of the property to someone else through your will.
If you’ve designated a specific beneficiary to receive proceeds from an asset, this asset won’t be included in your estate, either. An exception is if you’ve named the estate as the beneficiary. Common examples are life insurance policies or retirement benefit plans. When you die, the bank or trust company transfers the asset, or pays it out, to the person you named.
The proceeds of life insurance policies and benefit plans don’t form part of your estate. Even so, you can choose to name (or designate) a beneficiary of these kinds of assets either in your will (or a codicil) or in the policy itself. What if you change your mind and want a different person to receive the proceeds? Any new designation you make will replace any designations you made earlier.
A will is different from a power of attorney, representation agreement, or “living will”
A will can only be used after you die.
A power of attorney and a representation agreement are documents that can be used while you’re alive but not capable of handling your affairs yourself.
With a power of attorney, you can authorize someone to take care of financial and legal matters for you.
With a representation agreement, you can name someone to assist you with health care and personal care matters. A representation agreement can also cover routine financial and legal matters.
A "living will" is not a legal document in British Columbia. The term has been used to describe a person’s wishes for their health care treatments, and particularly treatments they don’t want in an end-of-life situation. In Canada, there are different documents that can be used to express your instructions for end-of-life care.
Decided to make a will? Learn the steps involved in preparing one.
Learn what's involved in being executor of someone's estate.
An executor is the person named in a will to carry out the instructions written in the will. If you’ve been asked to be someone’s executor, learn what’s involved in taking on the job.
An executor carries out the instructions in a will
An executor carries out the instructions in a will. The will-maker chooses the executor by naming them in the will.
When the will-maker dies, any property or possessions they owned exclusively form their estate. The executor “administers” the estate. They do this by locating all of the will-maker’s property, paying any debts, plus funeral costs and taxes, and then distributing the rest of the estate according to the instructions in the will.
Being an executor can be a demanding job
Acting as an executor can be relatively easy if the estate is simple — for example, if it consists of a car, a house, some personal belongings, and a bank account. But the job of executor can become challenging.
Your job as an executor may be more difficult if:
- there are many people named in the will to receive gifts
- the will-maker has a lot of assets or debts
- the will-maker owns a business
- the will includes a trust
- the will is challenged by someone who feels they haven’t received a fair share
There can be more than one executor
There may be more than one executor named in a will to act at the same time. If there is, the co-executors must act jointly. Neither is the "lead" executor. The co-executors have to agree on many things, from the selling price of the house to who gets the family photo albums.
Co-executors may have serious disagreements. If they can’t agree, they may not be able to move forward with administering the estate. If this happens, they’ll need to resolve the conflict by contacting a lawyer. They may even have to go to court. Or the beneficiaries may go to court and seek removal of co-executors.
You don’t have to act as executor
"After my sister died, I found out that she'd had named me as executor. It was a big surprise. I wanted to be helpful, but I didn’t want the job. I knew it would be too difficult and stressful. For one thing, I’m 78 years old. And I live in a different province. So I signed a notice of renunciation form, and the alternate executor took over."
– Brandon, Edmonton
If someone asks you to be their executor and you don’t want the job, you can say no.
You can even back out of your promise to be executor after the will-maker has died — as long as you haven’t started dealing with any of the estate assets. This is called renouncing — that is, declining — your appointment as executor.
You can renounce by signing a form called a notice of renunciation (form P17). The form will need to be filed in court when someone applies for probate or administration.
However, if you‘ve already started dealing with any estate assets, you're legally bound to continue. Examples include paying debts or changing the insurance on a house. Doing these things is considered intermeddling with the estate. You must continue administering the estate until the court discharges you of your responsibility.
You can get help
It takes time, energy, and careful attention to detail to be an executor. Many executors do the work themselves. But you can ask friends and family members for help.
You can also hire a lawyer or an accountant to help you. You may want to do this if the estate is complex. Fees for professional help can be paid out of the estate (as long as those fees are reasonable).
Many executors hire a lawyer to guide them through the probate process. Most executors hire an accountant to prepare the tax returns; some hire an accountant to prepare the estate accounts.
As executor, you’re legally responsible for the estate
As the executor, it’s your responsibility to make the decisions and keep accurate records. Even if you get help from others, at the end of the day, you are legally responsible for the estate. If you don’t do the job properly, you could be personally liable.
There are some expenses and fees you can claim
“Mom had given away most of her things before she died, so it was quite a simple job. I chose not to take a fee for being executor. After all, it was for family. And the truth is, it didn’t take up too much of my time."
– Hayley, Comox Valley
An executor can claim a fee for their time and effort. Often they choose not to accept a fee. This is common if the executor is a family member or close friend of the will-maker.
Sometimes the will specifies the amount of the executor’s fee. If the will doesn’t set out a fee, the executor may claim up to:
- 5% of the gross value of the estate,
- 5% of the income of the estate (money earned by the estate after the will-maker dies, such as rent), and
- 0.4% per year, based on the average value of the estate under management, for a care and management fee.
The amount the court will allow an executor to claim depends on how much work was involved. If there’s more than one executor, the fee is split. But it's not always split equally — it depends on who did most of the work.
Executors are often also named as a beneficiary in the will. They may claim the executor's fee in addition to any gift they receive under the will, unless the will says otherwise. Generally speaking, a fee is taxable, but a gift under the will is not.
The executor can also pay themselves back from the estate for out-of-pocket expenses. These are expenses the executor pays in order to administer the estate. Examples include search fees, photocopying, and postage.
An executor’s role ends when the court formally discharges them
For a straightforward estate, it can take about one year to complete the work of executor. This is commonly referred to as the “executor’s year.”
The executor remains responsible for looking after the estate, even after they’ve distributed the estate assets to the beneficiaries. If assets or debts turn up years later, the executor is still legally responsible for dealing with them.
An executor needs to go to court to pass their accounts and to be discharged as executor. Their role is only finished once this happens.
If you agree to being someone’s executor
If you agree to act as an executor, make sure you have a current copy of the will. Keep it in a safe place where you can easily find it. And make sure you know where the original is kept (you'll need this to probate the will). Ask the will-maker to give you a list of all of their assets and debts. Down the road, your job will be easier if this list is kept up to date.
Learn when you need to apply for a grant of administration, and how to do it.