Dying Without a Will by Jason Filek

Elderly couple holding hands as they plan out their will

There is a common misconception in British Columbia that if you die without a Will that the Government will take all of your assets. This is incorrect, and in fact, your assets will go to your family members, based upon legislation created by the Provincial Government. It is only in a situation where you have no family that the Government will take your assets.

When an individual dies without a Will, they are referred to as an Intestate Deceased. In that situation, the division of the Estate is determined by reference to the Estate Administration Act of British Columbia. How your Estate will be divided is determined by that Act based upon your particular family dynamic. In most situations, the first $65,000.00 will go to your spouse, and the remainder is then split between your spouse and children, with your spouse receiving one-third of the remainder, and your children sharing the remaining two-thirds. Although it is unlikely that the Government will receive the assets that you have worked hard to accumulate over your life, there may be a number of valid reasons for you to consider preparing a Will.

First, a Will gives you control over the distribution of your Estate. You may not agree with the scheme developed by the Government, and may wish to make gifts to family friends, extended family members or charities.

Second, if you have minor children, preparing a Will gives you the opportunity to select who will be the legal guardians for your minor children in the event that you pass away. You will lose that opportunity if you do not have a valid Will.

Moreover, if you do not have a Will, your minor children’s share will be held in Trust by the Public Guardian and Trustee’s office until the child reaches the age of 19. However, through a Will, you can appoint a Trustee for your minor child’s share of the Estate, and can direct that those funds be used for the child’s benefit.

Third, you can choose your own Executor in a Will. If there is no Will, and no one is willing to step forward, then the Public Guardian and Trustee or a trust company appointed by the Court may be appointed as the Administration of your Estate. This may result in increased fees which will deplete the assets of your Estate, and may also result in increased delay due to the large number of Estates handled by Trustees. Moveover, an Executor named in a Will is able to start dealing with certain aspects of your Estate immediately. If there is no Will, then an Administrator will need to be appointed and there will be no one to deal with the Estate until an Administrator is appointed by the Court.

Fourth, a Will is simply part of an Estate plan – it is not the entire Estate plan. Preparing a Will is an effective way for you to consider your overall Estate plan, and to take advantage of various opportunities available to avoid costs your Estate might otherwise incur.

Finally (and maybe most importantly), preparing a Will as part of your overall Estate plan will likely take little effort and expense on your part, but may save your family a lot of unnecessary expense and potential conflict later.