What happens to an Estate if there is no Will or How does Probate work if there is no Will?
If a person dies without a will, they are said to have died Intestate. A will is important because it directs how an estate should be administered and divided amongst loved ones. It also appoints a person to act as executor for the estate. Without a will, there is no executor and no directions on how an estate should be divided. Instead, intestacy laws are applied using the Wills, Estates and Succession Act (“WESA”).
If there is no executor to an estate, certain individuals are eligible to apply to the BC Supreme Court for a Grant of Administration. If the application is successful, the person who is named as administrator is able to manage and distribute the estate. The Government of British Columbia suggests the basic duties of an executor or administrator include:
- Completing an inventory and valuation of all assets and debts;
- Gathering names and addresses of all beneficiaries and next-of-kin;
- Cancelling subscriptions and charge cards, redirecting mail and wrapping up other personal matters;
- Taking control of all assets, including the transfer of ownership registrations and the collection of any debts;
- Paying all valid or proven debts left to the estate;
- Filing tax returns for the deceased and for the estate;
- Selling assets as necessary and distributing the estate; and
- Preparing and obtaining approval from the beneficiaries, heirs-at-law or the court for accounts showing assets, receipts, disbursements, and distribution of the estate.
An application for a grant of administration can involve a lot of paperwork. It usually includes notifying every person who may be entitled to a share of the estate; preparing and filing documents such as a certificate of will notice search; a detailed inventory and valuation of all assets and debts; the plan for distribution; and all affidavits required by the Court.
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WESA lists the people who may apply for a grant of administration for an intestate estate in order of priority. The list is set out as:
- The deceased’s spouse or a person nominated by the spouse;
- A child of the deceased, if that child has the consent of the majority of the deceased’s children;
- A person nominated by the deceased’s child, if that person has the consent of the majority of the deceased’s children;
- A child of the deceased that does not have the consent of the majority of the deceased’s children;
- An intestate successor other than the deceased’s spouse or child, if that person has the consent of the intestate successors who share a majority interest in the estate;
- An intestate successor other than the deceased’s spouse or child, that does not have the consent of the intestate successors who share a majority interest in the estate; and
- Any other person the court considers appropriate, which could include the Public Guardian and Trustee.
WESA also directs how an estate must be divided if there is no will. Without a will, these rules cannot be changed.
If the deceased leaves a surviving spouse and no children or other descendants, the entire estate passes on to the spouse.
If the deceased leaves a spouse and children, all of whom are also children of the spouse, that spouse receives the first $300,000 and half of the remaining estate. The other half of the remaining estate is distributed equally amongst the children.
If the deceased leaves a spouse and children, some or all of whom are not children of the spouse, that spouse receives the first $150,000 and half of the remaining estate. The other half is distributed equally amongst the children.
Surviving spouses do not automatically have an interest in the spousal home. Rather, the spouse has the option to buy the home.
If the deceased leaves no spouse, then the estate is divided among their children equally. If the deceased had no spouse or children, there are other rules that pass the estate on to other family members, such as parents, siblings, aunts and uncles, etc.
If no one qualifies to receive the estate under the rules, the estate goes to the provincial government.
If you are considering looking after a loved one’s intestate estate, or are planning for your own estate, you should consult with a lawyer.