What Happens When Someone Dies Without a Will in British Columbia

When a family member dies without a will, it is called dying intestate. There is no document naming someone to take charge, so the law decides who can step forward and who receives the estate. This can feel confusing while you are also grieving.

This article walks through the general process in British Columbia: who is in charge, what the court does, and how the estate is divided. Every family is different, so treat it as an overview and not a substitute for advice on your own situation.

This article covers the law of British Columbia.

Intestacy in plain words

An intestate estate is the property of a person who died without a valid will. The rules in WESA also apply to any part of an estate that a will does not deal with, so even a person who left a will can be partly intestate.

Someone who is appointed to administer an intestate estate is called an administrator. Once appointed, the administrator is conclusively deemed to have been the personal representative from the date of death. In practice, this means the administrator's authority looks back to the death, even though the court appointment comes later.

Who is in charge of the estate

Nobody is automatically in charge. WESA sets out who has first claim to be granted administration. The first priority is the spouse of the deceased, or a person the spouse nominates. A child ranks next, applying with the consent of a majority of the children.

Priority is not absolute. In special circumstances, the court may appoint any person it considers appropriate. If no one is willing or able to act, the Public Guardian and Trustee may administer the estate, although it may refuse if the cost of administering would exceed the value of the estate's assets.

Applicants do not normally have to provide security for administering an estate. There are two exceptions: a minor or incapable person with no nominee is interested in the estate, or the court requires security on an interested person's application.

What the court process involves

To be appointed, an applicant applies for a grant of administration at any B.C. Supreme Court registry. The application requires Form P2 (Submission for estate grant) and a wills notice search.

• Step one is delivering 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, and to each creditor with a claim over $10,000. If there is no successor, it goes to the Attorney General.
• Minors are given notice through a parent, a financial guardian or known addresses, and also the Public Guardian and Trustee. Mentally incompetent persons are notified through their committee or the Public Guardian and Trustee.
• Ordinary mail is deemed delivered on the mailing date. Email or fax delivery counts only once the recipient acknowledges it in writing.

The filings include the P2, the applicant's affidavit in Form P5, two copies of the wills-notice search certificate, affidavits of delivery in Form P9, and an affidavit of assets and liabilities in Form P10 or P11. The applicant must swear that a diligent search for a will was made, including electronic devices and third-party repositories. The assets affidavit may be filed later, and if assets or liabilities change, a supplemental affidavit must be filed promptly. Forms and rules can be amended, so check the current versions.

How the estate is divided

If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse. If there is a spouse and descendants, the spouse takes a preferential share first, and the rest is divided equally between the spouse and the descendants.

If there is no surviving spouse, the estate goes first to the deceased's descendants. If there are none, it goes to the parents, then to siblings, nieces and nephews, then grandparents and their descendants, then great-grandparents and their descendants. If no one in those groups is entitled, the estate passes to the government.

Adult children share equally, with no preference for age. Our separate articles on who inherits, and on what a surviving spouse receives, go into these rules in more detail.

What to do next

• Search carefully for a will, including on computers, phones and with any third party who may hold documents.
• List the likely heirs, because each may be entitled to notice.
• Gather information about the deceased's assets, debts and creditors.
• Talk with the family about who will apply to be administrator.
• Check the current forms and rules at the B.C. courts and the provincial government before filing.
• Speak with a lawyer if there are blended families, disputes, a business or out-of-province property.

Frequently asked questions