Legislated Disposition of your Estate in BC

BY W. GORDON McOUAT, B.A. LL.B.

This is the second of two articles from WillsAndLegalForms.com addressing what will happen to your estate in British Columbia if you die without a will.

By making a will you can ensure that your estate is distributed according to your wishes after you die.  If you die intestate (without a will) in British Columbia, there are arbitrary rules set out in the Estate Administration Act that determine to whom your estate is distributed, depending on the situation as to the relationship to you of your survivors. 

Before we begin, some definitions should be stated:

"spouse":  In addition to a person to whom you are legally married,  the Act defines "spouse" as including a "common law spouse"; 

 A "common law spouse" is defined as meaning either
 
 (a)  a person who is united to another person by a marriage that, although not a   legal marriage, is valid by common law, or

 (b)  a person who has lived and cohabited with another person in a marriage-like
 relationship, including a marriage-like relationship between persons of the same
 gender, for a period of at least 2 years immediately before the other person's
 death.

"issue" includes all lineal descendants of the ancestor (meaning you).

Distribution:

Here is how the legislation mandates the distribution of your estate:

Intestate leaving spouse but no issue:

If you die leaving a spouse (as defined above) but no issue (as defined above) your estate goes to your spouse.

Intestate leaving issue but no spouse:

If you die leaving issue (as defined above) but no spouse, your Estate is distributed per stirpes among your issue.  "Per stirpes" means "by roots".  For example, if you are survived by 3 children, each would receive 1/3 of your net estate.  But if, say, 2 of your children predeceased you, one, for example, leaving 1 child,  and the other, for example, leaving 3 children, the one grandchild would receive his or her parent's 1/3 share in your estate and the 3 grandchildren would  receive their parent's 1/3 share in equal shares between them, 1/3 of it each, so that each would receive 1/9 of your estate, and the remaining 1/3 would go to your 1 surviving child.

Comment:  If any of your children or grandchildren, as the case may be, are minors at the time of your death, this situation might require the setting up of a trust fund for each child or grandchild and Court permission to use the funds for the maintenance, education and  advancement in life of your children or grandchildren (which you could have much more easily provided for in your Will at much less cost in the long run). 

Intestate leaving spouse and issue:

If the net value of your Estate is not greater than $65,000, the Estate goes to your spouse.

If the net value of your Estate is greater than $65,000, your spouse is entitled to $65,000.  After payment of the $65,000 the residue of your Estate goes as follows:

 (a)  If you die leaving a spouse and one child, 1/2 goes to your spouse and 1/2 goes to your child;

 (b)  If you die leaving a spouse and children, 1/3 goes to your spouse and 2/3 is divided among your children.

If a child has died leaving issue (as defined above), the issue will take that child's share per stirpes (as defined above).

Comment:  This distribution could result in great hardship to your spouse, depending on the nature of the assets of your Estate.  For example, if you were survived by a spouse and 2 children, and the net value of your Estate was $665,000 your spouse would receive $65,000 plus $200,000 (1/3 of residue) for a total of $265,000 and $400,000 (2/3 of residue) would be held in trust for your children. 

Estate going to parents:

If you die intestate leaving no spouse or issue, your estate goes to your father and mother in equal shares if both are living; if either your mother or father is dead, your estate goes to the survivor of them.

Estate going to brothers and sisters:

If you die intestate leaving no spouse, issue, father or mother, your estate goes to your brothers and sisters in equal shares.

If a brother or sister is dead, the children of the deceased brother or sister take the share their parent would have taken if living, but no further representation is admitted beyond that degree of kindred.

Estate going to nieces and nephews:

If you die intestate leaving no spouse, issue, father, mother, brother or sister, your estate goes to your nephews and nieces in equal shares, but no representation is admitted.

Estate going to next of kin:

If you die intestate without leaving a spouse, issue, father, mother, brother, sister, nephew or niece, your estate is distributed equally among your next of kin of equal degree of consanguinity to you, and representation is not admitted in any case.

Kindred and half blood and posthumous births:

Degrees of kindred are to be computed by counting upward from you to the nearest common ancestor and then downward to the relative.  The kindred of the half blood inherit equally with those of the whole blood in the same degree. Descendants and relatives of yourself conceived before your death but born afterwards inherit as if  they had been born in your lifetime and had survived you.

Spousal home and household furnishings:

The home in which you and your spouse were ordinarily resident devolves to and becomes vested in those persons entitled to it, for example, your children/grandchildren, but those persons must hold the spousal home in trust for an estate for the life of your surviving spouse, or as long as your surviving spouse wishes to retain the estate for life.  If it is shown that any land contiguous to the spousal home could not reasonably be regarded as contributing to the use and enjoyment of the spousal home as a residence, the Court may decrease the size of the parcel of land to which the estate for life of the surviving spouse attaches.

The household furnishings, defined as "chattels usually associated with the enjoyment by the spouses of the spousal home", go to your surviving spouse. 

Separation of spouses as a bar:

Unless the Court on application orders otherwise, the surviving spouse takes no part of the deceased spouse's estate if the spouses:

 (a)  had, immediately before the death of one spouse, separated for not less than  
 one year with the intention of living separate and apart, and

 (b)  had not during that period lived together with the intention of resuming    cohabitation.

Conclusion:

All of the foregoing information clearly shows how many problems can be created by your failure to exercise your right and your obligation to make a Will. 

Not only do you need a Will if you are married or if you are living in a common law relationship, but also your spouse needs to make a Mutual Will.  In that situation both Wills will provide the same result, regardless of the order of death, or if you should both die in the same disaster.  Clearly both spouses need a Will.

The website www.willsandlegalforms.com provides over 40 different Will Forms for married, single, widowed, divorced, common law and same sex couples.  The site describes situations where a Will Form may not be appropriate and where the advice of a lawyer should be sought.  But in the vast majority of cases, the Will Forms offered at www.willsandlegalforms.com will serve the purpose and you will avoid the unexpected and unwanted consequences of dying without a Will.