Intestacy: Dying without a valid last Will and testament
When a person dies without a valid Will in British Columbia, they are considered to have died “intestate.” In British Columbia, the Wills, Estates, and Succession Act (WESA) sets out how the property of a person who died intestate is to be distributed. For example, if the intestate person’s spouse is still living, the spouse is usually entitled to a preferential share of the estate over the intestate’s children. However, WESA’s property division sections may or may not be in line with the intestate person’s actual desires. In such cases, it is important to note that WESA is just a starting point for property division.
What are WESA’s limitations?
BC courts have the authority to adjust or modify how an intestate’s estate is divided up. There may be circumstances in which the court will not follow WESA for example when there are estate debts or when there is evidence that the intestate had other intentions about who he or she wanted to leave their estate to. It is important to get early legal advice to determine if there is compelling evidence of estate debt or showing who the intestate wanted to have his or her estate. It is vital that you hire a lawyer who can guide you through this process. Although you are not legally required to hire a lawyer to guide you through this legal process, an estate litigation lawyer with experience in Wills disputes will be able to walk you through what steps to take if a family member dies without a Will to ensure the intestate’s property gets divided according to his or her last wishes.
What happens to the intestate’s property?
WESA contains a way of distributing an intestate person’s estate. The estate will include any money or real estate or any personal effects the intestate owned or had an interest in at the time of death. While the system of distribution set out in WESA is designed to be fair, in many cases, it is not a perfect system because it does not take the intestate’s unique intentions into consideration.
WESA dictates how much of the estate goes the intestate’s spouse, children, or other family members. As mentioned above, WESA says a spouse gets a preferential share of the estate. This means that the spouse is entitled to be paid out of the estate first and before the children or other beneficiaries. The size of the preferential share depends on whether or not the children are also the children of the spouse or if they are from a previous relationship. After the preferential share is paid, the remaining assets are divided equally between the spouse and children. If the intestate does not have a spouse or children, the next of kin are taken into account. If the intestate had debts or a shared interest in property at the time of death, then the estate may have to pay these as well and before the spouse or children receive anything.
What happens to the intestate’s minor children?
A Will can dictate who is to take guardianship over minors who were under the person’s care at the time of death. Without a Will, it may be up to the court to appoint a guardian. Immediate legal advice from an experienced estate litigation lawyer is crucial in situations where there are competing claims for custody of minor children.
Who gets to decide how the intestate’s property is divided up?
One of the first clauses in every Will appoints an “executor”. An estate’s executor has the responsibility to gather up all of the estate’s property, pay the estate’s debts, and finally to distribute any gifts (called bequests) to the beneficiaries according to what the Will says. The Executor also divides up and distributes any property or money left over (called the ‘residue’) to the beneficiaries as set out in the Will.
When a person dies without a Will, an estate “administrator” must be appointed. The administrator has all of the responsibilities of the executor and is therefore in charge of gathering up the intestate estate property and debts. The administrator then distributes the estate according WESA or a court order. WESA says that the court can appoint any person the court thinks is appropriate. Anyone can apply to the court for a grant of administration; however, the law gives priority to spouses, children, or family members.
Conclusion: get legal advice as soon as possible
Intestate estates can be very complex because life is complex and relationships are complex. The details matter when a court must decide how to distribute an intestate estate. Will it be according to WESA or are there facts sufficient to distribute the estate some other way? Again, in these situations it is vital to get early legal advice from a lawyer experienced in estate litigation so that you do not miss any legal advantage.
