March 4, 2011

What Happens If I Don’t Have a Will?

I am often asked that question by my clients. It is usually followed by the question; “Does the government get it all?”

As long as you have a surviving spouse, surviving descendants or relatives then the government doesn’t “get it all” and in fact Government of the Province of British Columbia has made provision for the distribution of your estate in the event you die without a Will. The legal term for dying without a Will is dying “intestate”.
As of the writing of this post, the legislation that determines the distribution of assets if you die intestate is the Estate Administration Act. The Government of British Columbia has passed new legislation that is expected to come into force later this year (2011) which amalgamates several existing statutes, including the current Estate Administration Act, into one new statute, Wills, Estates and Succession Act, S.B.C. 2009 C. 13 (the WESA).

The new legislation does make several changes to the current provisions for intestate distribution. As with the current legislation, if a person dies without a Will and leaves a spouse but no surviving children, the estate goes to the spouse. If a person dies without a Will and leaves a spouse and surviving descendants then under the new legislation the spouse is to receive the following:

  • the household furnishings
  • if the surviving children are descendants of both the deceased person and the spouse then the surviving spouse receives the first $300,000.00
  • if the surviving children are not common to both the deceased person and the spouse, then the spouse receives the first $150,000.00
  • in either case above, the remaining estate, if it is more than the spouse’s share is divided one half to the spouse and one half in equal shares to surviving children of the deceased person.

WESA, like the current legislation also makes provision for the distribution of an intestate estate if there are two or more spouses entitled to a share of the estate, (for example, the spouse you are married to and the common law spouse you live with ) and the division of the estate if you die without a spouse but leave surviving descendants or relatives.

This is a very simplistic summary of the proposed legislation and if you do not currently have a Will and want to know more about how the new legislation will affect your estate and your family you should make an appointment with your Notary Public or your Lawyer to review your estate plans.

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