Who Gets What When There is No Will (Intestate)

What happens when there is no will?

My late mother used to tell me even when I was an established estate lawyer that when someone dies without a will, his or her assets go to the government.

No matter how hard I tried, I could never persuade her of the provisions of the Estate Administration Act RSBC that exists to prevent that very occurrence ,unless there is absolutely no next of kin anywhere in the world.

The provisions that are set out in this blog will be dramatically changing as of likely 2013 when revamped legislation is brought into effect.

In the interim, sections 83-91 inclusive of the Estate Administration Act set out a statutory formula as to who gets what when a person dies without a will(intestate):

 

Intestate leaving spouse but no issue ( issue are lineal descendants- children, grandchildren etc.)

83  If an intestate dies leaving a spouse but no issue, the person’s estate goes to the spouse.
Intestate leaving issue

84   If an intestate dies leaving issue, subject to the rights of the spouse, if any, the person’s estate
must be distributed per stirpes among the issue.

Intestate leaving spouse and issue

85(1) In this section, “net value” means the value of an estate wherever located, both in and out of
British Columbia, after payment of the charges on it and the debts, funeral expenses, expenses of
administration and probate fees.

  1. This section applies if an intestate dies leaving a spouse and issue.
  2. If the net value of the person’s estate is not greater than $65 000, the estate goes to the spouse.
  3. If the net value of the person’s estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.
  4. After payment of the sum of $65 000, the residue of the estate goes as follows:

 

  1. if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;
  2. if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.

(6)If a child has died leaving issue and the issue is alive at the date of the intestate’s death, the
spouse takes the same share of the estate as if the child had been living at the date.

Spousal share if 2 or more persons are entitled as spouse

85.1 For the purposes of section 85, if 2 or more persons are entitled as a spouse they share the spousal share in the estate in the portions determined by the court as the court considers just.

Estate going to parents

86(1) If an intestate dies leaving no spouse or issue, the person’s estate goes to the person’s father
and mother in equal shares if both are living.

(2) If either of the person’s mother or father is dead, the estate goes to the survivor. Estate going to brothers and sisters

87(1) If an intestate dies leaving no spouse, issue, father or mother, the person’s estate goes to the
person’s brothers and sisters in equal shares.

(2) If a brother or sister is dead, the children of the deceased brother or sister take the share their parent would have taken if living, but further representation must not be admitted.

Estate going to nieces and nephews

88If an intestate dies leaving no spouse, issue, father, mother, brother or sister, the person’s estate
goes to the person’s nephews and nieces in equal shares, and representation must not be admitted in
any case.

Estate going to next of kin

89If an intestate dies leaving no spouse, issue, father, mother, brother, sister, nephew or niece, the
person’s estate must be distributed equally among the next of kin of equal degree of consanguinity
to the intestate, and representation must not be admitted in any case.

Kindred and half blood

90(1) For the purpose of this Part, degrees of kindred are to be computed by counting upward from
the intestate to the nearest common ancestor and then downward to the relative.

(2) The kindred of the half blood inherit equally with those of the whole blood in the same degree. Posthumous births

91         Descendants and relatives of the intestate, conceived before the person’s death but born
afterwards, inherit as if they had been born in the lifetime of the intestate and had survived the
intestate.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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