Half-Siblings and Adopted Children Without a Will in British Columbia

When someone dies without a will, the law decides who counts as family. That can raise hard questions if the deceased had half-siblings, an adopted child, or a child whose parents were not married.

In British Columbia, the Wills, Estates and Succession Act (WESA) sets an order of relatives and some specific rules for adoption. Some questions, such as half-siblings, turn on details a lawyer should confirm.

This article covers the law of British Columbia.

The order of relatives when there is no spouse

If there is no surviving spouse, the intestate estate goes in this order. It goes first to the deceased's descendants. If there are none, it goes to the parents in equal shares or to the surviving parent. After that come descendants of the parents (siblings, nieces and nephews), then grandparents and their descendants, then great-grandparents and their descendants.

If no one in that list is entitled, the whole intestate estate passes to the government, and the Escheat Act then applies. If there is a spouse, the spouse's rights come first.

Whether there is a spouse is the first question. Two people are spouses of each other 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.

There are exceptions. Married spouses stop being spouses if an event occurs that causes an interest in family property to arise under the Family Law Act, such as separation. Spouses in a marriage-like relationship stop being spouses when one or both of them end the relationship. 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 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, which is $300,000 or a greater prescribed amount where all the deceased's descendants are also the spouse's descendants. If some are not, such as children from another relationship, it drops to $150,000 or a greater prescribed amount. The spouse also takes the household furnishings. After the preferential share, the rest is divided equally between the spouse and the descendants. If the net intestate estate is worth less than the spouse's preferential share, the spouse takes the whole estate and the descendants take nothing.

Adopted children

An adopted child does not inherit on intestacy from a pre-adoption parent, and that parent does not inherit from the child. There is an exception: adoption by a pre-adoption parent's spouse does not end the parent-child relationship for succession purposes.

The rules above concern the link to the pre-adoption parent. How the adoptive family relationship is treated is a separate point to confirm with a lawyer.

Half-siblings and children born outside marriage

The list of relatives refers to siblings and the descendants of parents. Whether a half-sibling is treated the same as a full sibling, and how a child born outside marriage is treated, depends on how the Act defines those family relationships. That is worth confirming with a lawyer who can check the current wording against your facts.

In practice, half-siblings matter mainly when there is no spouse, no descendants and no surviving parent, because siblings come only after those groups.

Other situations that change who is an heir

• A person who does not survive the deceased by 5 days is treated as having died first.
• A descendant conceived before the death but born afterward inherits if the descendant lives at least 5 days.
• A child conceived and born after the death can inherit only on conditions, including written notice within 180 days of the representation grant and birth within 2 years of death.
• A will that does not cover everything leaves the rest to the intestacy rules.
• If a child died before the deceased, that child's share is divided in the same way among that child's own descendants, so grandchildren take their parent's share.

Estate property for descendants is divided into equal shares, so adult children share equally with no preference for age.

What to do next

A person applying to administer the estate must deliver a notice of proposed application in Form P1, and cannot apply until at least 21 days afterward. On an intestacy, the notice goes to each intestate successor, so the family tree matters.

Where a successor is a minor, notice is also given to the Public Guardian and Trustee, and a minor's share is generally paid to the Public Guardian and Trustee in trust where no trust exists.

• Draw a family tree showing every parent, child, adoption and sibling relationship.
• Collect adoption papers and birth records.
• Note any known relatives you have lost touch with.
• Check whether a will or other document exists.
• Ask a lawyer how the Act treats half-siblings or children born outside marriage in your situation.

Frequently asked questions