- The spouse, or someone the spouse nominates, has first priority to be granted administration, and a child ranks next.
- Property is shared under set rules: with a spouse and descendants, the spouse takes a preferential share first and the rest is divided equally between the spouse and the descendants, and with no spouse, the estate goes to the descendants first and then to other relatives in a set order.
- If no eligible relative exists, the estate passes to the government.
When someone dies without a will, the law decides who takes charge and who inherits. It can feel like nothing happens for a while, so a clear sequence helps.
This article walks through the stages from death to distribution. The details depend on your family and the estate, so a lawyer can confirm how the rules apply to you.
This article covers the law of British Columbia.
Who is in charge in the meantime
The personal representative of an intestate estate is conclusively deemed to be the personal representative from the date of death, even before a grant is issued. The first priority to be granted administration is the spouse, or a person the spouse nominates. 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.
Once appointed, the administrator is conclusively deemed to be the personal representative from the date of death. If no one is willing or able to act, the Public Guardian and Trustee may administer the estate.
Step one: look for a will, then apply for the grant
The applicant must swear that a diligent search for a will was made, including electronic devices and third-party repositories. The application is made at any B.C. Supreme Court registry with Form P2 and a wills notice search.
First, a notice of proposed application in Form P1 must be delivered, and the applicant may not apply until at least 21 days afterward. The notice goes to each intestate successor, to each creditor with a claim over $10,000, and to others the rules require. Minors are notified through a parent, a financial guardian or known addresses, and also the Public Guardian and Trustee.
Step two: debts and the family home
The application includes an affidavit of assets and liabilities in Form P10 or P11. It may be filed later, and a supplemental affidavit must be filed promptly if assets or liabilities change.
Without the surviving spouse's written consent, the personal representative must not dispose of the spousal home during the 180 days after the grant is issued, or any extended period. The exception is where other assets cannot pay debts and a mortgage or charge on the home would not raise enough. The order for paying debts, taxes and funeral costs is worth confirming with a lawyer or accountant.
Step three: who receives the property
| Situation | Who takes |
|---|---|
| Spouse, no descendants | The whole intestate estate goes to the spouse. |
| Spouse, all descendants are also the spouse's | The spouse takes a preferential share of $300,000, or a greater prescribed amount, then the rest is divided equally with the descendants. |
| Spouse, some descendants are not the spouse's | The preferential share drops to $150,000, or a greater prescribed amount. |
| Spouse, small estate | The spouse takes the whole estate if it is worth less than the preferential share. |
| No spouse | Descendants first, then parents, then siblings and their descendants, then grandparents, then great-grandparents. |
| No eligible relative | The estate passes to the government. |
If the net intestate estate is worth less than the spouse's preferential share, the surviving spouse takes the whole estate and the descendants take nothing. The spouse also takes the household furnishings. Descendants share equally, with one share for each surviving descendant and one for each deceased descendant who left descendants, so adult children share without preference for age. A grandchild takes the share of a parent who died first.
Some situations change the result. Spouses in a marriage-like relationship stop being spouses when one or both of them end the relationship. A person who does not survive the deceased by 5 days is treated as having died first. An adopted child does not inherit from a pre-adoption parent, but adoption by a pre-adoption parent's spouse does not end the parent-child relationship for succession purposes. If more than one person qualifies as the deceased's spouse, they share the spousal share in the portions they agree on, and if they cannot agree, the court decides.
A minor's share, where no trust exists, is paid to the Public Guardian and Trustee in trust for the minor.
What to do next
- Search for a will, including on computers, phones and with third parties.
- Work out who is the spouse and who the children are, as that decides who inherits and who has priority to apply.
- Collect a list of assets and debts.
- Hold off on dividing belongings or money until the administrator is appointed.
- Speak with a lawyer about the application and any family disagreements.
Frequently asked questions
Who counts as a spouse?
Two people are spouses if both were alive immediately before the relevant time and they were married, or had lived in a marriage-like relationship for at least 2 years. The relevant time is the date of death.
Does a separated spouse or common-law partner inherit?
Married spouses stop being spouses if an event such as separation causes an interest in family property to arise under the Family Law Act. Spouses are not treated as separated if, within one year after separating, they resume living together primarily to reconcile for periods totalling at least 90 days.
What if there is a will that covers only some property?
The intestacy rules also apply to any part of an estate that a will does not dispose of.
What if there are no relatives at all?
The whole intestate estate passes to the government, and the Escheat Act then applies.
Sources
- Wills, Estates and Succession Act, SBC 2009, c. 13, s. 2 — bclaws.gov.bc.ca
- Province of BC, After a Death: Deal with wills and estates — www2.gov.bc.ca
- Supreme Court Civil Rules, Rule 25-2 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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