Script 177 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script discusses why you should have a will, and if you don’t, who looks after your estate and how it is divided if you die without one.
Why should you make a will?
Every adult who owns assets or has a spouse or young children should have a will. Surprisingly, many people don’t have one. The few hours that you spend with a lawyer planning your estate could save your spouse, children and other beneficiaries much time, effort and money. By not having a will, you lose control over who gets how much of your estate and when. You also give up the right to appoint a guardian of your choice for any young children you have. And the costs to administer your estate will be drastically increased.
How will your estate be divided if you die without a will?
If you die without a will, BC’s Estate Administration Act dictates how your estate will be divided. It sets out the following rules:
- If you own a home, your spouse will have the right to use it for life. This is called a "life interest" and can tie up the estate for a long time. Your spouse receives the first $65,000 of your estate. Then if you have children, your spouse and children share what’s left – equally if you have one child, and if you have more than one child, then one-third to the spouse and the remainder equally to your children. If you have no children, then your spouse gets everything. Children born outside of marriage are treated the same way as other children in the family. But step-children are currently excluded.
- If you don't have a spouse, or if your spouse is dead, the estate goes to your children. If any of your children died before you, leaving their own children, then their children would take equally the share of your dead child.
- If you have no children or grandchildren, then your parents (or the survivor of them) get the estate.
- If your parents are dead, then the estate goes to your siblings, but if one of them has died before you and left any children living when you died, those children receive your dead sibling's share.
- If all your siblings are dead, then your estate is divided equally among your nephews and nieces, but if there are none, then it’s left to your other relatives based on a table of family connections that shows how they are related to you.
Does a “spouse” include a common-law spouse?
The definition of “spouse” in the Estate Administration Act includes a person who has lived with you for at least two years in a marriage-like relationship immediately before your death. It can be a common-law gay or lesbian relationship. This means that more than one person could be your “spouse” for the purpose of sharing your estate. If this happens, each spouse would share in the estate in portions that a court decides are fair.
When would the children get their share?
Without a will, the Public Guardian and Trustee becomes the trustee and holds the child’s shares in trust for them until they’re 19 years old. The child’s parent or guardian would have to apply to the Public Guardian and Trustee for any money needed for things like living expenses or education. This can be a hardship if the child is quite young and the parent or guardian needs the money for day-to-day expenses. When the child turns 19, they can demand all of their money no matter how much it is, regardless of their maturity or financial responsibility. By contrast, if you have a will, you appoint the executor and trustee for the share going to a child under 19, and you can direct that the share be used for the child’s benefit, including support and higher education, without government involvement.
Who takes control of your estate if you die without a will?
In a will, you can name an executor to manage your estate when you die. The executor is often a relative, friend or other trusted person. You can also name a guardian to look after any infant children. But if you die without a will, someone must be appointed by the court to manage your estate. This person is called an administrator. The court will also appoint a guardian if you have children under 19 and the other parent isn’t alive.
Who can apply to administer and handle your estate?
Your spouse is the first person who can apply. If you have no spouse or if your spouse is unwilling or unable to be the administrator, then a relative can apply. If there are no relatives willing or able to do this, then any other eligible person could apply to be the administrator. This may include a friend of yours, or a professional such as a lawyer or accountant. The Public Guardian and Trustee – as Official Administrator for the province of BC – might also apply to administer your estate, if for example, no one else is willing to take on the task.
Certain conditions may apply to the appointment of an administrator
If you have debts when you die, the person who applies to be the administrator must get your creditors to agree to the application. Also, the person who applies may have to get the agreement from other people who could be appointed administrator. In addition, the friend or professional may have to deposit money with the court (called a bond), as a way to ensure they do the work honestly and competently.
What does the administrator do?
The following are some of the things the administrator must do:
- Make funeral arrangements, if required.
- Locate all the estate assets and make sure that they’re secure; for example, ensure that a car or building is insured, and that valuable documents are in a safe place.
- Advertise in a local newspaper for creditors.
- Sell assets that need to be sold. This includes listing and selling real estate after having it appraised; selling stocks, bonds and other securities; and valuing and disposing of other personal belongings. Sometimes, instead of being sold, assets may be given a certain value and transferred to an heir as part of their share of the estate.
- Locate all family members who may be heirs to the estate. In some cases, this involves searches throughout the world.
- File all necessary income tax returns and obtain an Income Tax Clearance from the federal tax department, confirming that all income tax has been paid.
- Put all money in an estate account and use it to pay the estate's debts, income taxes, legal and accounting expenses, and possibly an administration fee.
- Pay any money left over to the heirs.
- Finally, make a report to the relatives listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.
Estate planning and making a will is very important
Making a will involves much more than just signing a document. It involves reviewing your potential estate and planning to minimize the costs of probating and administering your estate. As between spouses, and to some extent children, there are many legal ways to avoid paying substantial probate costs, administration costs, Public Guardian and Trustee expenses, and income taxes.
Where can you get help or find more information?
- You may call the office of The Public Guardian and Trustee at 604.660.4444 in Vancouver. Also check their website at www.trustee.bc.ca.
- For estate planning and to prepare a will, consult a lawyer.
- For more information on wills and estates, refer to Dial-A-Law scripts 176, 178, 179, and 180.
[updated July 2012]
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