What Happens to an Estate With No Will and No Relatives in BC?

Most people expect that someone will inherit when a person dies without a will. Sometimes no spouse or close family can be found. People then ask whether the estate simply disappears or goes to the government.

In British Columbia the law searches a long way through the family tree before it reaches that point. This article explains how far the search goes, what happens if it finds no one, and what role the Public Guardian and Trustee can play. It also explains what a person who believes they have a claim can do.

This article covers the law of British Columbia.

How far the search for heirs goes

If the person left no will, their estate is an intestate estate. The rules in the Wills, Estates and Succession Act (WESA) also apply to any part of an estate that a will does not dispose of. If there is a surviving spouse, the spouse comes first, and the spouse takes the whole estate when there are no surviving descendants. This article looks at the case where there is no surviving spouse.

With no surviving spouse, WESA s. 23 sends the estate through a set order. The order is:

• First, the deceased's descendants, such as children and grandchildren.
• If there are none, the parents in equal shares, or the surviving parent.
• Next, descendants of the parents, which means siblings, nieces and nephews.
• Then grandparents and their descendants.
• Finally, great-grandparents and their descendants.

A person is only reached if no one in an earlier group is entitled. Where descendants take, the estate is divided into equal shares, and a descendant who died first is replaced by their own descendants.

When the estate passes to the government

If no one listed in WESA s. 23(2)(a) to (e) is entitled, the whole intestate estate passes to the government, and the Escheat Act then applies. This is called escheat.

Under the Escheat Act, land escheats to the government when the last owner dies intestate and without lawful heirs. The Attorney General may assign personal property that passes to the government on intestacy without kin.

Whether anyone really fits within the listed groups can depend on the facts, such as adoption or whether a relative survived the deceased by the required period. A lawyer can help confirm whether the estate is truly without heirs.

Who can administer the estate

Someone usually has to apply to the court for a grant of administration. A person who is willing and able can apply at any B.C. Supreme Court registry. If no one is willing or able to be administrator, the Public Guardian and Trustee may administer the estate.

There are limits on that role:

• The court may appoint the Public Guardian and Trustee as administrator only with its prior written consent, or if it applies itself.
• No grant may issue unless the Public Guardian and Trustee swears that no person in B.C. is entitled to share in the estate.
• It may refuse if the cost of administering would exceed the value of the estate's assets.

A personal representative of an intestate estate is conclusively deemed to be the personal representative from the date of death.

Notice when there is no intestate successor

The first step in applying is to deliver a notice of proposed application in Form P1. The applicant may not apply until at least 21 days after delivering it.

On an intestacy, the notice goes to each intestate successor. If there is none, it goes to the Attorney General. It also goes to each creditor with a claim over $10,000, and to anyone the court orders or who has served a citation. Forms and rules can change, so check the current versions.

If you think you have a claim on an escheated estate

Someone may feel they should have received the estate even though they are not a legal heir. The Attorney General may restore escheated land to a person with a legal or moral claim. The Attorney General may also authorize payment of proceeds to a person with a legal, equitable or moral claim.

The Act gives no direct right to apply, so the outcome rests on the Attorney General's discretion. Practical steps:

• Gather proof of your relationship to the deceased and of any debt, promise or contribution you rely on.
• Find out whether the estate has been administered and whether the property has passed to the government.
• Write down why your claim is legal, equitable or moral.
• Speak with a lawyer before approaching the Attorney General, so your request is set out clearly.

Frequently asked questions