If you die without a will in BC, the law determines who inherits your estate. Here is how intestate succession works under the WESA - and why you need a will.
Many people put off writing a will, thinking it is not urgent. But if you die without a will (called dying "intestate"), BC law determines who inherits your estate - and the result may not be what you want. Here is how intestate succession works under BC's WESA.
What happens when you die without a will?
If you die intestate:
• Your estate goes through probate (court administration)
• The court appoints an administrator (instead of an executor you chose)
• Your assets are distributed according to a statutory formula - not necessarily your wishes
• The process is public
• Your family may have to go to court to settle disputes
• The administration costs more and takes longer than if you had a will
The intestate succession formula in BC
BC's WESA sets out a clear order of inheritance. Your estate goes to:
If you have a spouse and children:
Your spouse receives:
• The first $200,000 of your estate, PLUS
• Half of the remaining estate (after the first $200,000)
Your children (or grandchildren if a child predeceases) share:
• Half of the remaining estate (after the first $200,000)
Example:
You die with a $400,000 estate and a surviving spouse and two children.
• Spouse receives: $200,000 + (½ × $200,000) = $300,000
• Children split equally: (½ × $200,000) ÷ 2 = $50,000 each
If you have a spouse but no children:
Your spouse receives your entire estate.
If you have children but no spouse:
Your children share your estate equally. If a child predeceases you, their share goes to their children (your grandchildren).
Example:
You have a $300,000 estate and three adult children. Each receives $100,000.
If one child predeceased you but left two children, those two grandchildren would split their parent's $100,000 share ($50,000 each).
If you have no spouse and no children:
Your estate goes to (in this order):
1. Your parents (if alive)
2. Your siblings (or their descendants if a sibling predeceased)
3. Your grandparents (or their descendants)
4. Your aunts and uncles (or their descendants)
5. If no relatives are found, your estate goes to the Crown (the province)
Common law partners and intestate succession
Under BC law, a common law partner is treated like a spouse for intestate succession purposes if:
• You lived together for at least 2 years, OR
• You had a child together (regardless of how long you lived together)
If you were in a common law relationship meeting these criteria, your partner is treated exactly like a married spouse in the succession formula.
Why the intestate formula may not reflect your wishes
Consider this: You have a spouse and adult children. If you die intestate:
• Your spouse gets $300,000 of your $400,000 estate
• Your children split the other $100,000 equally
But what if you wanted:
• Your spouse to get the entire estate
• Your children to inherit only after your spouse dies
• Your estate split differently (not 50/50 between spouse and children)
• A friend or charity to receive a bequest
• Your minor children to be managed by a specific trustee
• Your business partner to have first right to purchase your interest
Without a will, none of these wishes are honoured. The law's formula applies regardless.
Who administers the estate if you die intestate?
Without a will naming an executor, the court appoints an "administrator." This is typically:
• Your surviving spouse, OR
• An adult child, OR
• Another family member
The court may require a bond (insurance) to protect the estate if the administrator is not a spouse or adult child.
Probate costs for intestate estates
If you die intestate and your estate requires probate:
• Probate fees are assessed (based on estate value)
• Legal fees are higher than if you had a will (because more questions arise)
• The process takes longer (often 6-12 months or more)
• Disputes are more common (without clear direction, family members may disagree)
Spousal claims under intestate succession
Under BC's Family Law Act, a surviving spouse can claim a greater share if they can prove:
• They made significant contributions to the estate
• They are in need
• The intestate formula is unfair given their circumstances
This creates potential conflict and litigation.
Avoiding intestacy
The solution is simple: Write a will. A will:
• Ensures your wishes are honoured
• Avoids the default statutory formula
• Reduces probate and legal costs
• Allows you to name your executor
• Gives you control over guardianship of minor children
• Can reduce taxes and estate disputes
• Is private (unlike intestate administration, which is public)
If you die intestate with dependent children
If you have minor children and die intestate, BC law does not automatically specify who will raise them. Instead:
• Your surviving spouse (if any) typically has custody
• If no surviving spouse, the court must determine who is in the child's best interest
• The court can appoint a guardian based on the statutory best interests test
• This process can be painful, public, and uncertain
A will allows you to name guardians for your children and specify who should raise them if both you and your spouse die.
At Sea to Sky Law™
We encourage all BC residents to create a will, even if their estates seem simple. A will costs far less than dealing with an intestate estate and ensures your wishes are honoured and your family is protected.
If you are administering an intestate estate or need to create a will, contact us for a free consultation.
This article is for general information only and does not constitute legal advice.
If you die without a valid Will in BC, your estate is distributed under BC's Wills, Estates and Succession Act (WESA) intestate succession rules. These rules follow a strict formula: a spouse receives a preferential share plus a portion of the remainder, and the rest is divided among children. Common-law partners of less than two years, step-children, and close friends receive nothing. Your actual wishes are irrelevant.
Only if the common-law relationship has lasted at least two years. BC's WESA recognizes a 'spouse' for intestate succession purposes as including a person who has lived with the deceased in a marriage-like relationship for at least two consecutive years immediately before death. A common-law partner of less than two years has no inheritance rights under the intestate rules.
Without a Will naming an executor, someone must apply to the BC Supreme Court for a Grant of Administration — the equivalent of a Grant of Probate for intestate estates. Priority to apply goes to the surviving spouse, then children, then other relatives. Without a Grant of Administration, no one has legal authority to deal with the deceased's assets.
The distribution formula itself cannot be overridden, but certain individuals may have other legal remedies. A spouse or child who receives less than adequate provision under the intestate rules may be able to make a wills variation-style claim. A common-law partner who does not qualify under WESA may have an unjust enrichment claim if they contributed to the estate assets.