What Happens to a Minor Child's Inheritance With No Will in BC?

When someone dies without a will in British Columbia, the law decides who inherits. If a child under 19 is one of those people, a parent or guardian often wonders who holds the money and whether they can use it for the child's day-to-day needs.

This article explains how a minor's share is worked out, the role of the Public Guardian and Trustee, and the practical steps involved. Every estate is different, so treat this as a general guide and confirm your own situation with a lawyer.

This article covers the law of British Columbia.

Does the child inherit at all?

It depends on who else survives the deceased. If there is a spouse and no descendants, the whole intestate estate goes to the spouse. In that case a child of the deceased is not in the picture.

If there is 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 spouse. If some of the deceased's children come from another relationship, the preferential share drops to $150,000, or a greater prescribed amount. The spouse also takes the household furnishings, and the rest is divided equally between the spouse and the descendants.

If the net estate is worth less than the spouse's preferential share, the spouse takes everything and the descendants take nothing. If there is no spouse, the estate goes first to the deceased's descendants.

How the children's share is divided

The descendants' property is divided into equal shares, with one share for each surviving child. Adult and minor children share equally, with no preference for age.

If a child died before the deceased, that child's share is divided in the same way among that child's own descendants, so grandchildren take their parent's share. A person who does not survive the deceased by 5 days is treated as having died first.

• A child conceived before the death but born afterward inherits as if born in the deceased's lifetime, if the child lives at least 5 days.
• A child conceived and born after the death can inherit only on conditions, including birth within 2 years of death and written notice within 180 days of the representation grant.
• An adopted child does not inherit on intestacy from a pre-adoption parent. Adoption by a pre-adoption parent's spouse does not end the parent-child relationship for succession purposes.

The Public Guardian and Trustee's role

Where no trust exists, a minor's share is paid by the personal representative to the Public Guardian and Trustee in trust for the minor. In plain terms, the money is not handed to the parent to manage. A public office holds it for the child.

The Public Guardian and Trustee also receives notice when someone applies for a grant. Minors are given notice through a parent, a financial guardian or known addresses, and also the Public Guardian and Trustee. If a minor or incapable person has an interest in the estate and has no nominee, an applicant may have to provide security, which is a form of protection for the estate. The court may accept any form or amount of security, or may limit the administrator's powers.

When the money is released to the child, and what it may be used for in the meantime, depends on the facts and on the Public Guardian and Trustee's own requirements. Ask the Public Guardian and Trustee or a lawyer to confirm this for your child.

Who deals with the estate while the child is a minor?

The first priority to be granted administration on an intestacy is the spouse, or a person the spouse nominates. A child ranks next, applying with the consent of a majority of the children. In special circumstances the court may appoint any person it considers appropriate. If no one is willing or able, the Public Guardian and Trustee may administer the estate, though it may refuse if the cost would exceed the value of the assets.

A surviving spouse also has some protection for the family home. Without the 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. There is one exception: where other assets cannot pay debts and a mortgage or charge on the home would not raise enough.

What to do next

• Find out whether there is a surviving spouse and whether all the children share the same parents.
• Gather the child's birth certificate and details of any other children or grandchildren of the deceased.
• Identify who intends to apply to be administrator and whether the family agrees.
• Ask a lawyer how notice, security and the Public Guardian and Trustee will apply to your family.
• Keep records of the deceased's assets and debts, since a list of assets and liabilities is part of the court filing.

A short conversation with a lawyer early on can save time, especially where children come from more than one relationship or the estate is close to the spouse's preferential share.

Frequently asked questions