Who Gets the Family Home When Someone Dies in BC?

When someone dies, the family home is often the biggest asset and the most emotional one. Who ends up with it can depend on a will, on the law that applies when there is no will, or on how the title was held.

This article walks through the main routes in British Columbia in plain language. Every family is different, so treat it as a map and not as advice for your situation.

This article covers the law of British Columbia.

Start with how the home was owned

The first question is whether the home sits inside the estate at all. The deceased's estate vests in the personal representative without further declaration or order, but property held by right of survivorship sits outside the estate.

When one joint tenant dies, the survivor takes the deceased's interest. To register this at the Land Title Office, an application is filed with a certified copy of the grant of probate or administration, or a certificate of death. Land transferred to two or more people is held as tenants in common unless the transfer document shows a contrary intention, and those interests are presumed equal if unstated. Tenants in common have no right of survivorship. What happens to each share then depends on the will or the rules that apply without one, so it is worth confirming with a lawyer.

A joint tenancy can also be severed before death. A joint tenant who transfers their interest to themselves severs the tenancy, and the owners then hold as tenants in common with no survivorship.

If there is a will

If the home was not held by right of survivorship, it is not outside the estate in the way survivorship property is. What happens to it then depends on the terms of the will and the facts, so it is worth confirming with a lawyer. The personal representative named in the will deals with the property, and the estate vests in them without a further order. They must not distribute the estate within 210 days, subject to the exceptions in that section.

A will is not always the last word. The court may order provision from the estate for a spouse or child who was not adequately provided for by the will. A spouse also has a separate right to acquire the home from the estate, covered below.

If there is no will

Without a will, WESA decides who inherits. For these rules a spouse is a married person, or someone who lived in a marriage-like relationship for at least 2 years.

Where there is a spouse and descendants, whatever remains after the preferential share is split half to the spouse and half to the descendants. Whether the home falls within that preferential share depends on its value and the rest of the estate.

The surviving spouse's special rights to the home

• A surviving spouse may acquire the spousal home from the personal representative, by written notice, within 180 days after the grant is issued unless the court extends the time.
• Without the spouse's written consent, the personal representative generally cannot dispose of the home during that 180-day period.
• A spouse living in the home while the purchase is pending pays insurance, taxes, maintenance, utilities and mortgage payments.

The court may also order the spouse to keep the home and turn the descendants' interest into a registrable charge. That charge is payable on the earliest of 12 months after the spouse's death, 12 months after the spouse leaves the home, or the sale completion date, unless the court orders otherwise.

What to do next

• Get a recent title search to see whether the home was held jointly or in one name.
• Find out whether there is a will and who the personal representative is.
• Note the date any grant is issued, because the 180-day deadlines run from it.
• Collect the mortgage details, since what happens to a mortgage on death depends on the contract.
• Speak to a lawyer before anyone sells, moves out or signs anything.

Frequently asked questions