Do Grandchildren Inherit If a Parent Died First in British Columbia?

A grandparent has died without a will, and your parent died earlier. You may worry that you are shut out because your parent is not here to claim. For many families the opposite is true.

In British Columbia, the Wills, Estates and Succession Act (WESA) lets grandchildren step into a deceased parent's place in many cases. How much you receive depends on how many shares the estate is divided into, and on whether the grandparent left a spouse.

This article covers the law of British Columbia.

The basic rule: you take your parent's share

Estate property for descendants is divided into equal shares. There is one share for each surviving descendant, and one for each deceased descendant who left descendants, counted in the nearest generation that has a survivor.

The share of a descendant who died before the deceased is divided in the same way among that descendant's own descendants, so grandchildren take their parent's share. Adult children share equally with no preference for age.

If there is no surviving spouse, the intestate estate goes first to the deceased's descendants. Only if there are none does it go to the parents, and then to more distant relatives in the order the Act sets.

A simple example of how shares work

Suppose a grandparent leaves no spouse and three children. One child died earlier, leaving two children of their own. The estate is divided into three equal shares: one for each surviving child, and one for the child who died first. That third share is split equally between the two grandchildren.

This is only an illustration of the method. In real estates, the number of shares and who qualifies can vary, so the figures should be checked against your family's facts.

When there is a surviving spouse

If the grandparent left a spouse and descendants, the spouse takes a preferential share first. It is $300,000, or a greater prescribed amount, where all the deceased's descendants are also descendants of the surviving spouse. If not all are, it drops to $150,000, or a greater prescribed amount.

The spouse also takes the household furnishings, and the rest is divided equally between the spouse and the descendants. The descendants' half is divided among them using the equal-shares method. If the net estate is worth less than the preferential share, the spouse takes it all and descendants take nothing.

A spouse is someone who was married to the deceased, or who had lived in a marriage-like relationship with them for at least 2 years, and the time that counts is the date of death. Married spouses stop being spouses if an event such as separation causes an interest in family property to arise under the Family Law Act. Spouses in a marriage-like relationship stop being spouses when one or both of them end the relationship. However, 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.

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

Timing, a partial will and other wrinkles

• A person who does not survive the deceased by 5 days, or a longer period set by an instrument, is treated as having died first, which affects who takes and whether shares pass down.
• A descendant conceived before the death but born afterward inherits as if born in the deceased's lifetime, if the descendant lives at least 5 days.
• A child conceived and born after the death can inherit only on conditions set out in the Act, so these cases are worth raising with a lawyer.
• The intestacy rules also apply to any part of an estate that a will does not dispose of.
• If you are an adopted grandchild, the adoption rules can affect whether a link to a pre-adoption parent counts.

What to do next

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.

Before the estate can be administered, the person applying must deliver a notice of proposed application in Form P1 and may not apply until at least 21 days after delivering it. On an intestacy, the notice goes to each intestate successor, which can include you.

If you are a minor, notice is given through a parent, a financial guardian or known addresses, and also the Public Guardian and Trustee. A minor's share, where no trust exists, is paid by the personal representative to the Public Guardian and Trustee in trust for the minor.

• Confirm the date your parent died and the date the grandparent died.
• Gather birth certificates showing the line from the grandparent to you.
• List all of the grandparent's children, living and deceased, and their children.
• Ask whether a will or partial will exists.
• Talk to a lawyer if the family cannot agree on the shares.

Frequently asked questions