Minor Children's Inheritance Without a Will in British Columbia

When a parent dies without a will and leaves children who are still minors, the question quickly becomes who looks after the money until the children are older. British Columbia has specific rules on this, and they involve a public office called the Public Guardian and Trustee.

This article explains how a child's share is worked out, who ends up holding it, and what the process looks like for the surviving family. It does not replace advice on your own circumstances.

This article covers the law of British Columbia.

How the estate is divided when there are children

The size of a child's share depends on whether there is a surviving spouse. If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse. With children, the rules change.

• If there is a spouse and all the children are also the spouse's children, the spouse takes a preferential share of $300,000, or a greater prescribed amount.
• If some children are from another relationship, the spouse's preferential share drops to $150,000, or a greater prescribed amount.
• The spouse also takes the household furnishings, and the rest of the estate is divided equally between the spouse and the descendants.
• If the estate is worth less than the spouse's preferential share, the spouse takes everything and the children take nothing.

If there is no surviving spouse, the estate goes first to the deceased's descendants. Because the prescribed amounts can change, it is worth confirming the current figures.

Dividing the children's portion

The descendants' portion is divided into equal shares, with one share for each surviving descendant and one for each deceased descendant who left descendants. There is no preference for older or younger children. If a child died before the parent, that child's share is divided among that child's own descendants, so grandchildren take their parent's share.

A child conceived before the death but born afterward inherits as if born in the parent's lifetime, if the child lives at least 5 days. Adopted children are treated differently for inheritance from a pre-adoption parent, so adoption history is worth raising with a lawyer.

Who holds a minor's share

Where no trust exists, the personal representative pays a minor's share to the Public Guardian and Trustee, to hold in trust for the minor. This means the surviving parent or another relative does not simply receive the child's money on the child's behalf.

The material available to us does not set out when and in what instalments the Public Guardian and Trustee pays the money to the child, so that point depends on the facts and is worth confirming with the Public Guardian and Trustee or a lawyer. Net proceeds the Public Guardian and Trustee holds for a beneficiary who cannot be located or paid are subject to the unclaimed money provisions of the Public Guardian and Trustee Act.

Who runs the estate and what children are told

On an intestacy, the first priority to be granted administration is the spouse, or a person nominated by the spouse. A child ranks next, applying with the consent of a majority of the children. The court may appoint any person it considers appropriate in special circumstances.

Security for administering the estate does not generally have to be provided, but there are two exceptions. One applies where a minor or incapable person with no nominee is interested in the estate, and the other where the court requires security on an interested person's application. The Act uses the word security, not bond.

Before applying, the applicant must deliver a notice of proposed application in Form P1 and may not apply until at least 21 days after delivering it. Minors are given notice through a parent, a financial guardian or known addresses, and also the Public Guardian and Trustee.

What to do next

• List the children, their ages and who currently cares for them, and note any children from other relationships.
• Find out whether the family home is a spousal home. Without the spouse's written consent, the personal representative must not dispose of it during the 180 days after the grant is issued, or any extended period, unless other assets cannot pay debts and a mortgage or charge on the home would not raise enough.
• Search for a will, including on electronic devices, before applying as administrator.
• If no one is willing or able to act as administrator, the Public Guardian and Trustee may step in, though it may refuse if the cost would exceed the value of the assets.
• Speak with a lawyer about how and when the children's share will be paid out.

Frequently asked questions