Do Grandchildren Inherit If Their Parent Died First and There Is No Will in BC?

When someone dies without a valid will, British Columbia law decides who inherits. If one of the deceased's children died earlier, families often wonder whether that child's own children, the grandchildren, are shut out or take their parent's place.

In general, grandchildren do step into the place of a parent who died first. The details depend on whether there is a surviving spouse, how many children and grandchildren there are, and a few special situations covered below. This article is general information, not advice on your own estate.

This article covers the law of British Columbia.

How the share passes down to grandchildren

Under section 24 of the Wills, Estates and Succession Act (WESA), estate property meant 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.

• A living child takes one full share.
• A child who died first, leaving children, has a share that is split equally among those children.
• A child who died first and left no descendants has no share.

The 5-day survivorship rule

A person who does not survive the deceased by 5 days, or by a longer period set by an instrument, is treated as having died first. This affects who takes and whether shares pass down.

In practice, if a child died within a few days after the parent, the child may be treated as having died first. That child's share would then go to the child's own descendants instead of to the child's estate.

Spouses, and when there is no spouse

If there is a surviving spouse, the descendants do not receive everything. Where the deceased 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 of the deceased's descendants are also descendants of the surviving spouse, the preferential share drops to $150,000, or a greater prescribed amount. The spouse also takes the household furnishings. The rest is then divided equally between the spouse and the descendants, and the descendants' half is divided among them under section 24.

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. Because the amounts can be raised by regulation, confirm the current figure before relying on it.

If there is no surviving spouse, the intestate estate goes first to the deceased's descendants, and the section 24 division applies. Only if there are no descendants does it move on to parents, then more distant relatives.

Special situations: unborn, adopted and minor grandchildren

• 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 and birth within 2 years of death.
• Adopted: 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.
• Minors: 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.

The intestacy rules also apply to any part of an estate that a will does not dispose of. So these rules can matter even when a will exists.

What to do next

• List the deceased's children and, for any child who died first, that child's children.
• Note the dates of death, since the 5-day rule depends on them.
• Find out whether there was a surviving spouse, and whether all the children are also the spouse's children.
• Note any adoptions or children born after the death.
• Confirm the current preferential share amount and how the rules apply with a lawyer.

Because family situations vary, a lawyer can confirm who is entitled and how shares should be divided.

Frequently asked questions