What Happens to a House if There Is No Will in BC?

When someone dies without a will, the family often assumes the house simply goes to the closest relatives. In British Columbia, a set formula decides who inherits, and how the home was owned can change the answer completely.

This article walks through the intestacy rules under the Wills, Estates and Succession Act (WESA), what happens to a jointly owned home, and what the estate needs before the house can be dealt with. It is general information, and family situations vary.

This article covers the law of British Columbia.

First, check how the home was owned

The will question only matters for property that is part of the estate. A true joint tenancy requires identical interests, with the four unities of title, time, possession and interest, and on a joint tenant's death the right of survivorship passes the interest to the surviving owner or owners. If a person holds their interest as a trustee, a true joint tenancy is not established. A joint tenancy can also be severed, for example by a joint tenant transferring their interest to themselves, which turns that share into a tenancy in common, or by a mortgage of their own interest or an assignment in bankruptcy. If there are more than two joint tenants, the survivors continue to hold as joint tenants after one dies.

Where there is no survivorship, such as tenants in common or a sole owner, the deceased's interest vests in the personal representative. A title search will show how the home is held.

Who inherits under the intestacy rules

The spouse's preferential share is $300,000 if all descendants are common to the deceased and the spouse, or $150,000 if not, and if the net estate is smaller the spouse takes everything. Distribution among descendants is in equal shares by generation, nearest generation first. Relatives of the fifth or greater degree are treated as having predeceased.

The same rules apply to any part of an estate not disposed of by a will, which is called a partial intestacy.

Who counts as a spouse

Two people are spouses if they are married to each other, or if they lived in a marriage-like relationship for at least 2 years. They cease to be spouses when a marriage-like relationship ends, or on the family property triggering event for a marriage. If two or more persons are entitled to a spousal share, they divide it as they agree or, failing agreement, as the court determines.

Because of this, a long-term partner who was not married may or may not qualify, depending on the facts. That is a common source of disputes and a good reason to get legal advice early.

Administering the estate and the house

With no will there is no named executor, so someone must be appointed as administrator. Who is eligible and in what order is a legal question worth confirming with a lawyer. To transmit a deceased owner's interest to a personal representative, the Land Title Office requires a court-certified copy of the Grant of Probate or Grant of Administration, a court-certified disclosure statement listing the deceased's land or charges, a Form 17 per parcel, and a Property Transfer Tax Return.

Under WESA s. 160, the estate vests in a person appointed as personal representative without further declaration or order, and land must be registered in the personal representative's name before further dealings are registered.

A personal representative must not distribute the estate within 210 days after the grant issues except by court order. Distribution within that period is allowed with certain consents; for an intestacy, the consent of all intestate successors entitled to a share is required.

What to do next

• Search for a will, even an old one, before assuming there is none.
• Get a title search to see whether the home was held jointly, in common, or by a sole owner.
• List the family members who may be entitled, including any spouse and descendants.
• Speak with a lawyer about who can apply to administer the estate and about the Grant of Administration.
• Do not sell, distribute or move into the home as owner until the authority to act is in place.
• Keep the home insured and maintained while the estate is sorted out.

Frequently asked questions