Can an Administrator Sell the Family Home in British Columbia Without a Will?

When someone dies without a will in British Columbia, the home they shared with their spouse is often the largest asset and the one that matters most emotionally. A surviving spouse may worry about being forced out. Adult children may worry about what the administrator is allowed to do.

The Wills, Estates and Succession Act (WESA) has a specific rule that limits when the home can be dealt with. This article explains how that rule works, who it protects, and how it fits with the spouse's share of the estate.

This article covers the law of British Columbia.

What the 180-day rule says

Under WESA s. 28, the personal representative must not dispose of the spousal home without the surviving spouse's written consent during the 180 days after the representation grant is issued, or any extended period. In an intestacy, the personal representative is the administrator.

There is one exception. The home can be dealt with if the estate's other assets cannot pay the debts and a mortgage or charge on the home would not raise enough. Whether that exception applies depends on the numbers in the particular estate, so it is worth getting advice before anyone relies on it.

• The rule needs written consent from the surviving spouse, not just a verbal agreement.
• The period can be extended.
• The rule is aimed at the administrator, who is the person who would otherwise sell or transfer the home.

When the 180 days starts

The 180 days is counted from the date the representation grant is issued, not from the date of death. In practice, a grant of administration can take time to obtain, because the applicant must first deliver a notice of proposed application and may not apply until at least 21 days after delivering it.

The administrator is conclusively deemed to be the personal representative from the date of death. That does not shorten the protection. It simply means the administrator's authority is treated as reaching back, while the 180-day clock for the home is tied to the grant.

Who counts as a spouse for this rule

Two people are spouses if both were alive immediately before the relevant time and they were married, or had lived in a marriage-like relationship for at least 2 years. The relevant time is generally the date of death of one of them. For an unmarried partner, no particular document is required to prove the relationship, so it is shown by evidence.

Reconciliation can change the result. Spouses are not treated as separated if, within one year after separating, they resume living together primarily to reconcile and live together for periods totalling at least 90 days. These questions are fact-heavy, so a lawyer can help if the history is unclear.

How the home fits with the spouse's share

The 180-day rule is about when the home may be dealt with. It is separate from what the spouse ultimately inherits. If there are no surviving descendants, the whole intestate estate goes to the spouse. If there are descendants, the spouse takes a preferential share first, together with the household furnishings, and the rest is divided equally between the spouse and the descendants.

The size of the preferential share depends on whether all the deceased's descendants are also descendants of the surviving spouse. The amounts can be raised by regulation, so confirm the current figures before relying on any number you have seen. If the net intestate estate is worth less than the spouse's preferential share, the spouse takes the whole estate.

If more than one person qualifies as the deceased's spouse, they share the spousal share in the portions they agree on, and the court decides if they cannot agree.

Who is the administrator, and what about a partial intestacy?

The first priority to be granted administration on an intestacy is the spouse, or a person the spouse nominates. A child ranks next, applying with the consent of a majority of the children. In special circumstances the court may appoint any person it considers appropriate. So the surviving spouse is often the person who controls the process, but not always.

A will may not deal with everything. The intestacy rules also apply to any part of an estate that a will does not dispose of. If the home falls into that part, the spouse should ask a lawyer how the home protection applies.

What to do next

• Find out whether a grant of administration has been applied for or issued, and note the date it is issued, since the 180 days runs from then.
• If you are the surviving spouse, do not sign any consent to sell or transfer the home until you understand what you are agreeing to. Consent must be in writing.
• If you are the administrator, hold off on listing or transferring the home unless the spouse has consented in writing or you have confirmed the debt exception applies.
• Gather the mortgage statements, a list of other assets, and a list of debts, so the estate's position can be assessed.
• Gather evidence of the relationship if the spouse is a common-law partner, such as shared residence and finances.
• Speak with a lawyer if there is any dispute about who is a spouse, or if the estate may be short of money.

Frequently asked questions