Having a will, no matter what age you are, is one of the most important things a person can do for those they care about. If we’ve learned anything through this pandemic, it is that life is totally unpredictable. It is better to be prepared and provide for those you love by creating a Will sooner rather than later. A will is a dynamic document, which can be changed as your life circumstances change. It is always best to review the terms of your will every five years or so to ensure it reflects your wishes.
In May’s blog post we covered what you can do if you feel the terms of a Will are unfair, or you have been excluded from the estate.
But what happens if your loved one, be it parent or spouse, dies without a Will? What happens then?
When someone dies without a Will (in legal language ‘dying intestate’), B.C.’s Supreme Court system through its Probate Registry (the legal body that processes and determines the validity of the will) will appoint an administrator – this may be another family member or a trusted advisor such as the family lawyer. The Probate Registry serves the purpose of ‘administering your estate,’ and when a person dies intestate the Administrator will decide how to divide the estate in accordance with BC’s Wills, Estates and Succession Act (WESA) – a provincial statute that governs the law of inheritance in British Columbia (each province has its own version of this act).
According to WESA, if the deceased is survived by a spouse and no descendants, the entire estate goes to the spouse. WESA defines ‘spouse’ as a person who is married to the deceased, or who has lived with the deceased (including a person of the same gender), in a marriage-like relationship, for at least two years prior to the date of death. Descendant’ is defined as a surviving person of the next generation nearest to the deceased – almost always their children.
If the deceased is survived by a spouse and children, the spouse gets at least part of the estate. How much depends on whether the children are also the spouse’s children. If the deceased leaves a spouse and children, all of whom are also the spouse’s children, the spouse gets the first $300,000 of the estate and half of what’s left over. The other half is divided equally among the children.
If any of the deceased’s children are not also the children of the surviving spouse, the spouse gets the first $150,000 of the estate and half of what is left over. The other half is divided among the children of the deceased. In either case, the spouse has the right to acquire the family home from the estate as part of their share.
If there is no surviving spouse, the estate is divided equally among the deceased’s descendants.
This may mean that the estate may not be disbursed the way the deceased would have intended, or how family members expected. Human nature being what it is – the surviving relatives might not always agree. The lack of clear direction, that a Will would have provided, can create conflicts which may last a lifetime. This is happening more frequently as the valuation of real estate is driving up the value of the entire estate. Navigating through this complex process only adds to the stress for grieving family members.
At Clark Woods LLP we understand that decisions are difficult to make in these circumstances and our legal team is here provide counsel and expertise. As your partners in this process, our commitment is to make it as manageable, and stress-free as possible.
We believe in access to justice and handle many cases such as this on a contingency basis. Contingency means that there are no up-front costs on your part. We negotiate with you to take a percentage of the settlement and only get paid if we win the case for you.
Where’s there’s no Will, together we’ll find a way.