Intestacy – distribution of the estate
When person dies without a will the person dies intestate. All the assets of the deceased are collected into the deceased estate and then distributed to his or her hairs. In order to distribute the intestate’s estate the letters of administration must be obtained, which takes about 6 months in British Columbia. Part 3 of the Wills, Estates and Succession Act (the “new rules”) sets out the new rules for the intestate estates.
Spouse and no Children
When there is a spouse and no children, the estate will be distributed to the surviving spouse.
Spouse and Children
When there are spouse and children, the spouse will receive the house furnishings and a preferred share in the intestate estate.
Where the children are children of both, the intestate and the surviving spouse, the preferential share of a spouse is $300,000. Where the intestate and the surviving spouse did not have children together but there are children from previous relationships of the intestate, the preferential share of a spouse is $150,000. If the value of the estate is less than the preferential share, the estate is distributed to the spouse. If the net value of the estate is greater than the preferential share, the residue is divided equally between the spouse and the children of the intestate.
Under the Estate Administration Act, the old rules, the spouse was entitled to a life interest in a spousal home, which after the death of the surviving spouse was reverting back to the children. Under the new rules the spouse can acquire the spousal home from the personal representative. The surviving spouse may use his or her preferential share ($150,000 or $300,000 and ½ of the estate thereafter, if any) to pay for the spousal home, if the share is not enough, the surviving spouse have to pay the difference. If a spouse cannot immediately pay the difference, it may be converted into a registrable charge in favor of the children and their descendants.
No Spouse but Children, Grandchildren and other Relatives
Where there are children and their descendants (children, grandchildren, grand grandchildren, etc.) of the intestate, the estate will be distributed to them.
Where there are no surviving direct descendants of the intestate (children, grandchildren, grand grandchildren, etc.), the estate will be distributed to the intestate’s parents in equal shares or to the surviving parent if only one is alive at the time.
If there are no children or their descendants or parents, the intestate’s estate will be distributed to the intestate’s brothers and sisters or their children, up to the 4th degree of kinship. If there are no brothers and sisters or their children, the estate will be distributed to the grandparents of the intestate or the grandparents’ descendants up to the 4th degree of kinship. Anyone of the 5th or greater degree of relationship to the intestate is deemed to predecease the intestate except those who are intestate’s direct descendants (children, grandchildren, grand grandchildren, etc.).
Without going inot much details of determination of degrees of kinship limitations set out in the new rules indicate that distribution of the intestate’s estate may not go to the deceased family members. If there is no one to take the estate under the current rules, the estate passes to the government, subject to the Escheat Act.
