Dying without a Will (Intestacy)

Dying Without a Will (Intestacy)

Jump to: Overview • Forms • Examples • FAQs • Related Information

Jump to: Overview • Forms
Examples • FAQs • Related Info

This website is from Nidus, a BC non-profit society. We provide free information to: help British Columbians plan for the future, support self-determination, and provide equitable access to essential resources and benefits.

Legally reviewed. Last update made in June 2023.

What does “intestacy” mean?

Intestacy refers to when a person dies without a will. This person is called the “intestate” or is said to have “died intestate”.

An intestate will have an “intestate estateestate: the property of the deceased person“, and the people who will receive all or part of the intestate estateestate: the property of the deceased person are called “intestate successors“.

Part 3 of the Wills, Estates and Succession Act covers the rules about when a person dies without a will.

For status Indians who ordinarily lived on reserve at the time of their death, different rules and laws may apply. It is important to obtain legal advice from a lawyer who specializes in this area, due to the complexity of the law. See Wills and Estates on Reserve by Legal Aid BC for more.

What are the concerns if I die without a will?

Benefits of making a will include:

You can choose who to appoint as your executor(s)Executor(s): the person(s) you name in your will to carry out your instructions – to pay debts and distribute your estate. If there is no will, someone will have to apply to be administratorAdministrator: The person responsible for administering the estate of someone who died. Like an executor, but appointed by a court. – see FAQs below for more information about applying for a Grant of AdministrationGrant of Administration: A document from the court certifying that the person appointed (as administrator) has the legal authority to deal with the estate of the deceased.
You can choose to leave specific things to specific people (to an extent — in BC, the courts can “vary”, or change, the WillWills Variation: the courts in BC may change the distribution in the will if it does not adequately provide for the will-maker’s spouse or children. What is adequate depends on the specific circumstances of each case.)
If you have minor children or people with disabilities who you would like to give money or assets to, it is important to consider factors and discuss options with legal advisors, including whether you should develop a testamentary trustTestamentary trust: A trust created on the creator’s death; this is commonly done in a will, which specifies what is to be held in trust, who will manage the trust, who will benefit, how long the trust will operate for, and how the funds will be distributed., for example, if the beneficiary may not be able to manage the inheritance on their own until a certain age, or for the remainder of their life.
You may want to leave money to charity, or anyone else who is not an intestate successor.

What if I never make a will?

Although it is recommended, not everyone will make a will. For example, someone may not be capable of making a will.

To be capable of making a will, a person must understand the nature and effect of making a will, have a sense of what they own and who may expect to inherit (e.g. spouse and children), and be free of “mental delusions”. This is a legal test, and not a medical one.

If someone does not make a will before they die, whether or not they were capable of doing so, their estateestate: the property of the deceased person will be distributed according to the rules outlined in the Wills, Estates and Succession Act.

How will my estate be distributed without a will?

The rules of intestate succession are complex as they have to apply to many circumstances, including blended families.

Surviving Spouse(s)

If there is only a surviving spouseSpouse (in the context of BC wills and estates): a person you are married to, or with whom you have lived in a marriage-like relationship for 2+ years. and no living descendantsDescendants: children, grandchildren, etc. of the deceased, then the entire estate will go to the spouse, even if there are other living relatives.

If there is a surviving spouseSpouse (in the context of BC wills and estates): a person you are married to, or with whom you have lived in a marriage-like relationship for 2+ years. and surviving descendants (of the same spouse), the spouse receives $300,000 (or the entire estate if it is less than this amount), and the remainder, if any, is divided one half to the spouse and the other half among the deceased’s descendants.

If there is a surviving spouseSpouse (in the context of BC wills and estates): a person you are married to, or with whom you have lived in a marriage-like relationship for 2+ years. and surviving descendants (of another spouse), the spouse receives $150,000 (or the entire estate if it is less than this amount), and the remainder, if any, is divided one half to the spouse and the other half among the deceased’s descendants.

Two or more spousesSpouse (in the context of BC wills and estates): a person you are married to, or with whom you have lived in a marriage-like relationship for 2+ years.: If there are two or more spouses, they share what a singular spouse would have been entitled to, in the portions which they agree upon. If they cannot agree, the court will determine the split.

Spousal home: Spouses also have a right to acquire the spousal home (where the deceased and the spouse were ordinarily residentA person is ordinarily resident in the place where, in the settled routine of their life, they regularly, normally, or customarily live.) as part of their share. The spouse must exercise this right within a prescribed time period.

No Surviving Spouse(s)

If there are descendantsDescendants: children, grandchildren, etc. of the deceased, then the estate will be divided among them:

All the deceased’s children are alive: The estate will be divided equally among the children.
One or more of the deceased’s children predeceased: If any of the children died before the deceased and left surviving children of their own (i.e. the deceased’s grandchildren), that deceased child’s share will be divided equally among their own children.

If there is no surviving spouse and no descendants, the estate will be divided in the following priority:

Parents of the deceased;
If no parents, siblingsHere, siblings refers to the descendants of the deceased’s parent or parents of the deceased;
If no parents or siblings, then grandparents;
and so on.

If there are no qualifying relatives, then the estate goes to the BC government.

To read more in detail about the distribution rules in an intestacy, you can read the legislation yourself here.

Administration Forms

See Probate Forms
Part 25 of the Supreme Court Civil Rules outlines the rules around who you have to give notice of your application to, how to apply, and which documents to include as part of your grant of administration application.

Register

Securely register a copy of your funeral wishes with the Nidus Registry, a BC-based centralized searchable digital repository with 24/7 access.

Nidus Registry

A grandmother is hiking with her arm around her grandchild, with other family members walking ahead on the trail.

FOR EXAMPLE – Spouse, children & grandchildren

Mary put off making a Will and then her dementia advanced to a stage where she was not considered mentally capable to make a Will.

The value of Mary’s estate, after expenses, is $500,000. She and her spouse sold their home when Mary was first diagnosed. They invested the proceeds from the sale and lived together in an assisted living residence. Later, Mary needed more personal care and moved to a facility that provided 24/7 services.

Although Mary was not capable to make a Will, she was able to make a Representation Agreement Section 7 (RA7ALLRA7ALL is a type of Section 7 Representation Agreement that includes all four authorities (health care, personal, legal, financial).) so she had help with decisions affecting her quality of life.

If Mary was survived by her spouse, John, and no children: John inherits the entire estate of $500,000.

If Mary was survived by her spouse John, and two children from their marriage, Anne and Tom. Ann has two children, and Tom has one child: John inherits the household furnishings, a preferential share of $300,000, and an additional $100,000 (half of the remainder). Anne and Tom each inherit $50,000 (an equal portion of half of the remainder of the estate). The three grandchildren inherit nothing, because their parents (Mary’s children) are still alive.

If John pre-deceased Mary and Mary is survived by her two children, Anne and Tom: Anne and Tom share the estate equally – $250,000 each. The three grandchildren inherit nothing, because their parents (Mary’s children) are still alive.

If John pre-deceased Mary and Mary is survived by her son Tom and his one child (Mary’s grandchild); Anne predeceased her but is survived by her two children (Mary’s grandchildren): Tom inherits half of the estate or $250,000, and Anne’s two children inherit half of Mary’s estate, divided equally – or $125,000 each. Tom’s child does not receive anything.

If John, Tom and Anne all pre-deceased Mary, and Mary is survived by three grandchildren – Tom’s one child and Anne’s two children: Tom’s child inherits half of Mary’s estate or $250,000, and Anne’s two children will equally split the other half of Mary’s estate, and receive $125,000 each.

FOR EXAMPLE – Parents, Siblings, Nieces & Nephews

Bruce is an adult with a disability from birth. He was considered not mentally capable to make a Will. Although he did not communicate in a traditional way, Bruce had an active a full life. He made a Section 7 Representation Agreement, which allowed the people who knew and cared about him to help him access benefits and participate in activities for his quality of life.

For example, they helped him pursue his interest in photography (buy and use his camera). The idea is for Bruce to use his money while alive.

With the help of his representative, Bruce had set up a Registered Disability Savings Plan (RDSP). It gave him extra funds for things like vitamins, dental work, and regular physiotherapy treatments as he aged. It also covered the cost of a special mattress that provided extra comfort and protection from bed sores when he was dying and bedridden.

The value of Bruce’s estate, after expenses, is $6,000 – from money in his bank account (after returning government benefit income) and in his RDSP (after taxes).

Bruce did not have a spouse or children.

If Bruce was survived by his parents, June and Sven, his brother Henreich, and sisters Gwen and Linda, his nieces and nephews (Henreich has 3 children, Gwen has 4 children, and Linda has 2 children): June and Sven (his parents) inherit equally – $3,000 each.

If his father, Sven, pre-deceased Bruce but his mother, siblings, and nieces/nephews survived: June, his mother, inherits his entire estate of $6,000.

If his parents both pre-deceased Bruce but his three siblings and their children survived: Bruce’s three siblings each inherit $2,000, or one-third of Bruce’s estate.

If both his parents and his sister Linda (who has two children) pre-deceased Bruce but his brother Henreich, sister Gwen, and Linda’s 2 children survived: Henreich and Gwen will each receive one third of Bruce’s estate, or $2,000, and Linda’s two children will inherit $1,000, or one third of Bruce’s estate divided equally.

A smiling man lays his head on the shoulder of his father, both are smiling.

Intestacy FAQs

Who pays for the burial or cremation?

The deceased’s estate will pay for the costs. The following are common ways the costs are paid:

A spouse or family member may pay the bill(s) out of their own pocket and get reimbursed later, from the estate. They will submit proof of payment to the administratorAdministrator: The person responsible for administering the estate of someone who died. Like an executor, but appointed by a court. (see below on administration).
If no one can cover the costs out of pocket, and the deceased has enough funds in their bank account, the financial institution will usually pay the funeral home bill out of that bank account. The unpaid invoice can be taken to the financial institution.
If no one can wait to be reimbursed and the deceased does not have funds, the PGT website lists some options.
Sometimes the deceased may have prepaid some funeral services or joined the Memorial Society of BC. The problem is that survivors often do not know about these arrangements and may end up paying twice or not getting a discount.
- Nidus recommends using the Registry to keep track of these things.
- Consumer Protection BC has information about prepaying costs and about the funeral industry in general.
- Some seniors have joined the Memorial Society of BC – where members are encouraged to fill out an “Arrangements Form” and file it with them – this is not a legally binding document. Membership includes 10% off the cost of burial or cremation as negotiated by the Memorial Society with funeral service providers. To get this discount, someone must contact the Society immediately after the death of the deceased. Consider storing a copy of your Memorial Society membership card in the Nidus Registry and share viewing access with those who may need to know.

Who can decide on burial and cremation?

In BC, the Cremation, Interment and Funeral Services Act, section 5, lists who can make decisions about burial and cremation. If there is no Will, the right to decide in order of priority goes to the deceased’s:

1. Spouse;
2. AdultAdult: a person who is 19+ years old child;
3. Adult grandchild;
4. If the deceased was a minor, a person who was a guardian who had care and control of the deceased at the date of death;
5. Parent;
6. Adult sibling;
7. Adult nephew or niece;
8. Adult next of kin – e.g. grandparent, aunt, uncle, cousins.

If more than one person is eligible for a category, they can come to an agreement. If they cannot agree, the priority goes to the eldest. If no one above is able or willing, the right goes to:

The Minister responsible for the Employment and Assistance Act;
the Public Guardian and Trustee if they are going to be the administrator of the estate;
an adult with a personal connection to the deceased, such as a close friend.

I thought a surviving spouse could live in the spousal home until their death?

The Wills, Estates and Succession Act changed the rules for what happens to the spousal home if there is no Will.

The old law gave the surviving spouse a right to live in the spousal home until their death, but many banks would not recognize this right when the mortgage needed to be changed or renewed. A sale was often forced on the spousal home.

Who administers the estate if there is no will and therefore no executor?

The law provides a priority list of who can apply for a Grant of AdministrationGrant of Administration: A document from the court certifying that the person appointed (as administrator) has the legal authority to deal with the estate of the deceased.

Spouse of the deceased, or someone nominated by the spouse;
A child of the deceased with the consent of the majority of the children;
A person nominated by the child of the deceased, with the consent of the majority of the children;
A child of the deceased without the consent of the majority of the children;
An intestate successor other than the spouse or child of the deceased, with the consent of the intestate successors representing a majority in interest of the estate;
A person nominated by an intestate successor with the consent of the majority intestate successors;
An intestate successor without the consent of the majority intestate successors;
A person nominated by government;
Any other person the court considers appropriate, including the Public Guardian and Trustee.

Can there be two administrators?

Yes, there can be more than one administrator. If the Grant of Administration is being submitted, all who wish to be administrator must apply. Having multiples may involve more time and effort.

Is a Grant of Administration required?

A Grant of AdministrationGrant of Administration: A document from the court certifying that the person appointed (as administrator) has the legal authority to deal with the estate of the deceased may not be required if the deceased’s estate is less than $25,000 (and if there is no real estate or fishing license). The Death Certificate and next-of-kin details may be enough for the institutions that are holding the funds or other assets.

The estate does not include joint property that will go to another owner through the right of survivorship (see Joint Ownership), or for registered plans, insurance plans or other accounts that have named beneficiaries (see Beneficiary Designations).

How do I apply for a Grant of Administration?

Several forms must be completed and submitted to a Supreme Court of BC Registry.

1. A notice of proposed application (Form P1) must be sent at least 21 days before submitting the application for grant to the following people:

Each person who is an intestate successor, or would have been an intestate successor if the estate exceeded the spouse’s entitlement;
Creditors of the deceased (if the creditor’s claim is over $10,000);
if the deceased was a Nisg̱a’a citizen, the Nisg̱a’a Lisims government;
if the deceased was a member of a treaty first nation, the treaty first nation;
The Public Guardian and Trustee, if a minor or an adult who is considered not capable to manage finances is entitled to inherit;
Any other person who is entitled to notice by court order;
Any other person who has served a citation on the intended applicant in relation to the deceased.

2. Other forms will need to be filled out. A “typical” application will include the following:

P2: Submission for estate grant – confirming that you are applying for a grant of administration, information about yourself, the deceased, and what documents you are filing
P5: Affidavit of the applicant – information about yourself and how you know the deceased
P9: Affidavits of delivery – confirming that the notice of proposed application was delivered to all the required people
P10: Affidavit of assets and liabilities – confirming the assets and liabilities of the deceased
Two copies of a wills search result: The Wills Registry operated by the BC government through Vital Statistics registers information about registered wills – not copies. You must provide proof that you checked – it does not matter if you know there is no will. You can do the search by mail or in-person.

If the application is complete and not opposed, the registrar will issue a Grant of Administration. If there is opposition, this may simply require more information or it may require legal help.

Can the administrator receive a fee?

Yes. Section 88 of the Trustee Act says an administrator is allowed a fee related to the value of the estate as well as an annual fee and maintenance fee.

Fees are taxable.

Intestate successors (as long as they are adults and capable of consent) can agree on the administrator’s fee – otherwise, they must apply to the Supreme Court of BC.

What are the duties of an administrator?

The duties of an administrator (whether a Grant of Administration is required or not) may include:

Locating and notifying those entitled to inherit;
Notifying the surviving spouse of their right to acquire and purchase the deceased’s interest in the spousal home (if applicable);
Identifying and notifying creditors who may be owed compensation from the deceased;
Identifying and valuing items the deceased owned, and protecting these until they are needed to pay debts and for distribution;
Paying the deceased’s debts and, if necessary, selling items the deceased owned to do this;
Applying for the Death Benefit (if applicable);
Filing tax returns;
Paying expenses related to administration including legal fees and accounting fees;
Distributing the estate tot hose entitled to inherit;
Keeping a record of all activities related to administration of the estate. You may need to report and provide an accounting to those entitled to inherit or to the court.

What are the fees for Grant of Administration?

Fees for a Grant of Administration are the same as for the Grant of Probate. The fees are outlined in the Probate Fee Act.

A short-hand calculation is to take approximately 1.4% of the gross value of the estate. See the detailed fee calculation here.

There is also a basic court filing fee of $200 for estates over $25,000.

How long does administration of an estate take?

Administration can take two or more years. Generally, the estate cannot be distributed to those who are entitled to inherit until 210 days after the Grant of Administration is issued.

One reason settling an estate takes time is because most administrators (like executors) will wait until Canada Revenue Agency (CRA) issues a “clearance certificate” before distributing the estate. This certificate indicates no more tax is owing and the file is closed.

Am I personally liable as administrator?

As an administrator, you are not personally liable (responsible) to pay the debts of the deceased.

As long as you act honestly and reasonably, you are less likely to be held responsible for a small mistake in the course of following your duties, even if it causes a loss to the estate.

It is when you ignore or deliberately act against your duties that you may be held personally liable.