In British Columbia, if a person ends up dying intestate, this is governed by the Wills, Estates, and Succession Act. It means that they have died without doing their will first. This is not too much of a problem if the person does not have much in the way of assets or little kids. It can be a huge problem, however, if the person does have assets and does have little kids.
A will is something that people often think they should get around to doing but often procrastinate and avoid getting it done. The problem is that if you die it is too late or if you lose your competency (as sometimes happens with older people) it is also too late.
Getting your will done is particularly important if you have minor children (so your will can say who you would want to care for them in the event of your untimely demise) and if you have assets of any significance.
A financial advisor told us recently that if you die without a will, it simply means that you end up with a will but one that that you did not choose. What he meant by that is that when you die without a will the Estate Administration Act of British Columbia will decide how your estate gets distributed.
If someone ends up dying
intestate the legislation then decides how that person’s assets (referred to as
their “estate”) will be distributed. Section 83 to 89 of the Estate Administration Act says what
happens when the person has a spouse and kids, a spouse and no kids, no spouse
and no kids but living parents, no spouse and no kids and no living parents but
living aunts, uncles, cousins etc.
So, if a person ends up
dying intestate and they have a spouse but no kids, the situation is relatively
simple. The estate goes to their spouse.
If a person ends up dying intestate, however, and has a spouse and kids, then the estate gets equally divided between the kids after first taking into account what the spouse is entitled to. The spouse gets the first $65,000 of value (not so much these days). Then the estate is divided into two parts. The spouse gets one part and the next part is divided up equally among the kids.
What this means is that
if you die without a will the government’s legislation decides how your estate
will be distributed. Is this something that you would want? Most people would
Also, if you do not have a will, the government or
courts will ultimately decide who will care for your kids rather than having
that decision being made by you. The courts will then decide what is in your
children’s best interest rather than you.
Dying intestate can result in a messy situation for
your surviving loved ones pretty quickly. The good news is that the messy
situation is easily avoidable if you complete your will.
One more thing (and of course a lawyer would say
this . . . ) it is better to spend a
little bit of money on a lawyer to ensure that your will is drafted properly
and executed properly. Although you can easily go online and buy a will kit, it
is easy to make a mistake (with respect to how it is witnessed etc.) so that
the will may be set aside by someone who does not like its terms. So, if you
are going to do it, do it right.
This article was written by Val Hemminger, lawyer and mediator.
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