- When there is no will and no surviving spouse, the estate goes first to the deceased's descendants, which includes grandchildren in some cases.
- A grandchild takes the share of their parent who died before the deceased, and that share is divided among that parent's own descendants.
- A minor grandchild's share is generally paid to the Public Guardian and Trustee in trust where no trust exists.
When someone dies without a valid will, the law decides who inherits. Many people wonder whether grandchildren are included, especially if their own parent has already died. The answer depends on who else survived and on how the family tree looks.
This article explains in plain terms how the Wills, Estates and Succession Act (WESA) treats grandchildren in British Columbia. It is general information, not advice on your own situation.
This article covers the law of British Columbia.
Descendants come first when there is no spouse
If there is no surviving spouse, WESA s. 23 sends the intestate estate first to the deceased's descendants. Only if there are none does it move to parents, then to siblings, nieces and nephews, and further out.
Descendants means children, and also grandchildren and later generations where they qualify. The same intestacy rules apply to any part of an estate that a will fails to deal with.
How shares are counted: the nearest generation with a survivor
Under WESA s. 24, the property 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. Adult children share equally, with no preference for age.
Where there is no surviving spouse and all of the deceased's children are alive, the children share the descendants' portion equally and grandchildren take nothing from it. Grandchildren come in when one or more children did not survive. If a spouse survives, the spouse's rights come first, as explained below.
When a child died first, the grandchildren step in
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. That means a grandchild does not take a full child's share on their own. They split their parent's share with their brothers and sisters.
| Situation | Who generally takes |
|---|---|
| All children alive, no spouse | The children share equally |
| One child died first, leaving children | That child's share is divided among those grandchildren |
| One child died first, leaving no descendants | The remaining shares are counted among survivors in the nearest generation |
Timing and special cases
Several rules can change who counts as a descendant who takes.
- Five-day survivorship: 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. This affects who takes and whether a share passes down.
- Born after the death: 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.
- Conceived after the death: a child conceived and born after the death can inherit only on conditions, including written notice within 180 days of the representation grant, birth within 2 years of death, and the deceased being the child's parent under Part 3 of the Family Law Act.
- Adoption: an adopted child does not inherit on intestacy from a pre-adoption parent, and that parent does not inherit from the child. Adoption by a pre-adoption parent's spouse does not end the parent-child relationship for succession purposes.
A surviving spouse comes ahead of descendants
If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse. If there are descendants, the spouse takes a preferential share first, and the amount depends on whether all the descendants are also the spouse's descendants.
The spouse also takes the household furnishings. The rest is divided equally between the spouse and the descendants, and the descendants' half is divided among them under s. 24. If the estate is small, the spouse may take all of it and the descendants nothing. A grandchild's share is therefore often smaller than expected when a spouse survives. The preferential share amounts may be changed by regulation, so confirm the current figures.
What to do next
If a grandchild is a minor, their share is not simply handed over. Where no trust exists, a minor's share is paid by the personal representative to the Public Guardian and Trustee in trust for the minor.
- Make a family tree showing the deceased, their spouse, children and any who died first.
- Note the date of death and whether anyone died within 5 days afterward.
- Find out whether any child was adopted, or any grandchild was born after the death.
- Gather documents showing relationships, such as birth certificates.
- Speak with a lawyer if the family is blended, a share seems unclear, or someone is a minor.
Frequently asked questions
Do grandchildren inherit if their parent is still alive?
Generally no. Shares are counted in the nearest generation that has a survivor, so a living child takes their share and their own children do not.
Do grandchildren inherit equally with the deceased's children?
Not as separate full shares. A grandchild takes part of the share their deceased parent would have received, divided among that parent's descendants.
What if a child died a few days after the deceased?
A person who does not survive the deceased by 5 days is treated as having died first, which can pass that child's share down to their own descendants.
Who receives a minor grandchild's inheritance?
Where no trust exists, the personal representative pays a minor's share to the Public Guardian and Trustee in trust for the minor.
Sources
- Wills, Estates and Succession Act, s. 20 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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