League and Williams Lawyers

Tag: intestate

Dying without a Will (Intestate): Who Acts as Executor?
If someone dies intestate (without leaving a valid will), the courts determine the estate’s distribution and the executor of the estate. In a past blog post, we discussed how an estate is distributed when someone dies intestate. In this post, we’ll identify who can be appointed executor of an estate when someone dies without leaving a valid will.

The job of an executor can be time-consuming and stressful, but it is highly important. The executor is crucial to the correct administration of an estate. Some of the responsibilities of an executor include planning funeral arrangements, locating all of the testator’s assets, liquidating assets for distribution, filing tax returns, paying any debts owed, and distributing the estate. When the deceased does not leave a valid will, the complexity of these tasks can increase as the executor does not have specific directions to follow. In appointing an executor, the courts must be sure that the person will take the job seriously and handle the estate as the testator intended.

Executor Priority List

When no one applies to administrate an intestate estate, the Public Guardian and Trustee can take on the duty.

For the courts to appoint someone as executor of an intestate estate, interested parties must apply. The person with the highest priority on the list described in the Wills, Estates and Succession Act (WESA) will become the executor.

Section 130 WESA

As described in section 130 of WESA, the courts will use the following order of priority:
1. The spouse of the deceased person or a person nominated by the spouse;
2. A child of the deceased person having the consent of a majority of the children of the deceased person;
3. A person nominated by a child of the deceased person if they person have majority consent of the deceased’s children;
4. A child of the deceased person not having the consent of a majority of the deceased person’s children;
5. A successor other than the spouse or child of the deceased person, having the consent of a majority of the other successors including the successor who applies for a grant of administration;
  - A person, other than the spouse or child of the deceased person, nominated by a successor of the deceased if that person has the consent of a majority of the other successors, including the successor who nominated the person to apply for a grant of administration;
6. An intestate successor other than the spouse or child of the deceased person, not having the consent of a majority of the other successors, including the successor who applies for a grant of administration;
7. Any other person the court considers appropriate to appoint, subject to the Public Guardian and Trustee’s consent.
Executor Priority in Practice

In simple terms, the order of priority goes: the spouse, a person nominated by the spouse, a child with majority consent, a person nominated by the children, a child without majority consent, a successor of the intestate estate and lastly, any other interested party. ‘Interested parties’ can include registered professionals such as lawyers and accountants in these circumstances.

For example, if a person dies intestate without a spouse, but with three children (two daughters and one son).

While the executor order of priority is clear if one dies intestate, it’s always best to write a valid will naming exactly who you want to be named executor of your will. If you need help drafting your will, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
June 7, 2023
Posthumous Births: Are Children Born after Their Parent’s Death Entitled to the Estate?
Sadly, children are sometimes born after one of their parents passes away – a posthumous birth or after-born child. In other cases, babies can be conceived well after one of their parents has passed away because of current and advancing reproductive technology. In such cases, is the after-born child entitled to receive any of their deceased parent’s intestate estate like a child who was born before one of their parent’s deaths would be? The answer can be yes and no; however, it is common for an after-born child to be entitled to the estate.

When a Posthumous Child is Entitled

An important distinction made in the Wills, Estates and Succession Act (WESA) is whether the child was conceived before or after the parent’s death. As described in s.8 of the WESA,

“Descendants and relatives of an intestate, conceived before the intestate’s death but born after the intestate’s death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate.”

As per this provision, it’s clear that posthumous children conceived before their parent’s death are entitled to an inheritance. On the other hand, when the child is conceived after their parent’s death, there are specific conditions that must be met in order for the child to be entitled to the estate. In summary, the conditions are:
1. The surviving parent who was in a marriage-like relationship with the deceased parent has written permission allowing the use of their reproductive material, written within 180 days of being used;
2. The child is born within 2 years after the parent’s death and lives for 5 days or longer; and,
3. The deceased parent is the child’s parent as described in the Family Law Act.
In BC, posthumous children conceived before their parent’s death are always entitled to an inheritance.

When all of these conditions are met, the child is entitled to receive an inheritance from the deceased parent exactly like a child born before their parent’s death would be. If, for example, the posthumous child was born 4 years after the parent’s death, the child would not receive any of the estate if the parent died without a valid will. They would only be entitled to their surviving parent’s estate, once they have passed.

What Does This Mean for Posthumous Children?

If a posthumous child is entitled to inherit from the intestate estate, they will receive an inheritance as described by the guidelines on intestacy in WESA. For more information, read our blog post on how the WESA will distribute an intestate estate. In most cases, posthumous children can expect to split the estate with their surviving parent (with the parent receiving an additional $300,000 before the estate is split).

Minors in BC cannot receive an inheritance until they are 19 years of age or older. This means that the posthumous child would have their inheritance kept in a trust, or held by a trusted adult until they reach the age of 19. Once the posthumous child is no longer a minor, they will receive the entirety of the their inheritance.

When the deceased parent has not died intestate, the provisions for the child made in their will are to be followed. The distinction between posthumous or not, and if the child was conceived before or after death are irrelevant. When the parent has not died intestate, posthumous children do not need to worry about the courts overruling the will’s requests to follow intestacy directions.

If your child is an after-born child and you’re unsure if they are entitled to the deceased parent’s estate, contact an experienced estate lawyer today. We will ensure that your after-born child receives the inheritance that they are entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
February 7, 2023
Probate vs. Letter of Administration: What’s the Difference?

When someone dies, it often leaves their loved ones wondering about how they should start administering the estate. If the deceased leaves a will, the courts need to verify its validity. If the deceased didn’t write a will, the courts take on the responsibility of deciding a fair distribution of the estate and appointing an estate administrator. Ultimately, it can become confusing and stressful for those involved with handling a loved one’s estate. In this blog we’ll clarify the difference between processes of probate and letters of administration.

Probate

Probating a will ensures its authenticity, confirms it was left by the deceased, and validates the executor’s authority to manage the deceased person’s estate. The executor must apply to the court for a grant of probate, which can make probate a lengthy process. The court gives the grant of probate to the executor once they prove their legal authority over the estate. Probating a will aims to prevent the improper handling of large assets after the owner’s death.

If the will-writer doesn’t own land, a large bank account, or a large investment account, their estate assets don’t meet the minimum value required for a grant of probate.As a general rule of thumb in British Columbia, if the total value of the estate named in a will is less than $25,000, the will won’t need to go through probate; however, there can be exceptions to this rule. The most common of which being instances where there are joint tenancy agreements over the assets in question.

If the testator is in a joint tenancy agreement with someone, such as their spouse, the spouse will have full ownership of the asset upon the testator’s passing. This is also the case for any assets that have a designated beneficiary assigned to them; the beneficiary will gain authority of the asset upon the testator’s death. If the value of the estate is above $25,000, excluding any joint tenancy assets and assets with designated beneficiaries, the will must be granted probate.

Letter of Administration

When someone dies intestate, the letter of administration names an administrator, not an executor.

If a person dies without leaving a valid will, the courts decide the distribution of the person’s estate. Since there is no will in such cases, it does not make sense to apply for probate as there is no valid will to test. Interested parties can apply for a letter of administration to receive executor-like duties as the estate administrator. In our estate blog on dying intestate – who becomes the executor (or administrator), we discussed the order of priority for multiple applicants.

In some cases, a person leaves a valid will; however, it does not account for all of their assets. When this happens, the Court grants probate to the will and must also award a letter of administration to properly distribute the assets not named in the will. As an example, an elderly man names all of his assets in his will except for his savings account with $100,000 in it. Someone must obtain a letter of administration to distribute the savings account, and to distribute the remaining assets, the valid will needs a grant of probate.

Probate Fees

Whether the court grants probate or a letter of administration to the estate, it must pay approximately 1.4% of the total estate’s value plus a $200 court filing fee. However, if the value of the estate assets is under $25,000, these fees will be waived.

In general, probating a will and receiving a letter of administration are similar processes, but have different purposes and applications in different circumstances. When an individual dies fully or partially intestate, the distribution of assets requires obtaining a letter of administration. In the case of a properly validated will, the executor typically needs to secure a grant of probate, eliminating the need for anyone to receive a letter of administration.

If you’re unsure whether you need to receive a grant of probate or a letter of administration, contact an experienced estate lawyer today. We can help guide you through the probate process or through the process of receiving a letter of administration.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

January 25, 2023
When does the Government Inherit an Estate (the estate escheats)?
It is a surprisingly common misconception that if you don’t write a will, the government will inherit your estate. The government rarely inherits an estate, and this only happens when there are absolutely no available beneficiaries or relatives of the testator. In such cases, the estate escheats. Further, when individual assets from an estate fall into intestacy (no valid beneficiary appointed, or no valid will exists), the government still has the lowest priority to receive the intestate assets. Any relatives of the deceased will be entitled to receive the estate before it escheats.

Dying Without a Will or Intestate

If someone dies without leaving a valid will, their assets typically go solely to their spouse and children. When the testator has no spouse or children, their parents, brothers, sisters, or other relatives inherit the estate. In general, the closer the relationship of a beneficiary to the testator, the higher priority they will have to inherit the estate. For more information, read our blog on dying intestate and how assets are distributed.

If no relatives can be located, the government receives the estate assets. If this is the case, the estate escheats.

When the Estate Escheats

The best way to prevent your estate from escheating is by writing a valid will as soon as possible.

The Escheat Act specifies exactly what happens when an asset escheats and who is responsible for handling the escheated assets. Basically, when the intestate succession finds that there are no lawful heirs to the estate, the assets escheat and become property of the government. For real property such as real estate, the government will seize ownership and in most cases, sell the property.

Personal belongings will usually be disposed of as they have minimal value and aren’t typically worth taking time to sell. As described in s.8 of the Escheat Act, the Attorney General may act in their own discretion to “make any assignment of personal property to which the government is entitled because of
1. The person last entitled to it having died intestate and without leaving any kin or other person entitled to succeed to it,
2. The property having become vested in the government as a thing that had no owner, or
3. The property having become forfeited to the government, or
Make an assignment of any portion of the personal property, for the purpose of
1. Transferring or restoring it to any person or persons having a legal or moral claim on the person to whom it had belonged,
2. Carrying into effect any disposition of it which the person may have contemplated, or
3. Rewarding the person making discovery of the right of the government to the property.”
Another factor to note is that the government will never seek out the estate executor, asking for the escheated assets from the estate. The only time the government becomes aware of an escheated estate is when the executor notifies them.

Relative Found After Assets Have Escheated

Before declaring that the estate escheats, an estate executor must search for any relative or heir who could legally inherit the deceased’s estate. After a diligent search and a sufficient effort to locate an heir, the executor can notify the government and escheat the estate. In some cases, a relative of the deceased surfaces and comes looking for their inheritance, after it has already escheated. At this point, it’s not the executor’s responsibility and the relative must deal with the government. The person can apply to the Attorney General to have the assets distributed to them and will usually be successful if they’re a lawful heir of the deceased. There is no limitation period in this scenario.

You usually don’t need to worry about your estate or a loved one’s estate escheating. This will only happen if (a) the person died without leaving a valid will, and (b) there are absolutely no relatives to the deceased entitled to inherit the estate.

If you’re worried about an estate escheating, the best way to prevent this is by writing a valid will. If you need assistance writing your estate plan, contact an experienced estate lawyer today. We will ensure your estate is handled exactly as your expecting and distributed to those that you wish.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
September 19, 2022
Intestacy: Who Makes the Funeral Arrangements?
When a loved one passes away unexpectedly, it may leave family and friends without any idea of who should plan the funeral or what the deceased’s preferences would have been. As a general rule of thumb, the deceased’s estate executor is the person who is responsible for and has the authority to make funeral arrangements. When a person dies intestate (without a valid will), they won’t have named an executor who would otherwise be responsible for managing their affairs after death. One might conclude that the person acting as the intestate estate executor (administrator) should arrange the funeral. However, the selection of the intestate administrator likely won’t occur until well after the funeral. So, who plans the funeral arrangements of an individual who has died intestate?

Hierarchy

Generally speaking, when there are no directions or instructions left by the deceased, the next-of-kin will be the person to make the funeral arrangements. When the next-of-kin is unavailable, the next closest relative will have the responsibility. Usually, the hierarchy of authority resembles this:
1. Spouse,
2. Children,
3. Parents,
4. Siblings, and then
5. Grandchildren.
If the deceased’s spouse cannot or does not want to arrange the funeral, the authority will pass to their children. If the children cannot take on the role, the extended family will receive the offer. This protocol is not statutory law in BC, but is the most common way people address this issue.

Instructions Left by the Deceased

The best way to avoid intestacy disputes with your estate is to prepare an estate plan as soon as possible!

Typically, people preparing an estate plan include instructions for their preferred funeral arrangements. Regrettably, the law generally does not bind instructions for funeral arrangements, and the writer cannot guarantee adherence to their instructions. The person with the authority to plan the funeral arrangements can essentially make any decisions they wish in regards to the funeral. If you have specific requests for your funeral, it’s best to speak with your loved ones so that they understand what you wish for. It’s rare for a family member to specifically go against your requests when they understand and know what you wish for.

It’s recommended that people leave instructions of how they wish to have their funeral and burial arrangements planned. When they do, it’s easy for loved ones to simply follow these instructions instead of having the autonomy to make their own decisions.

Making Funeral Arrangements

Aside from planning the actual event for the memorial service, the person organizing will have a handful of decisions they will have to make. Some of these decisions include:
- Whether to cremate or bury the body;
- Where to have the remains rest;
- Whether to have a funeral or memorial service;
- Where the funeral/memorial service is to be held; and
- How much should be spent on the service.
It’s important to understand that the person planning the funeral is not the person who pays for everything. The deceased’s estate will pay or reimburse the person who pays for the funeral, assuming a reasonable amount is spent on the service. This means that the person planning the funeral can’t spend an excessive amount and expect to be fully reimbursed.

Controversy Over Who has the Authority to Make Funeral Arrangements

In the Ontario case of Catto v. Catto (2016), the deceased’s spouse and mother argued over who had the right to bury the deceased’s ashes. The deceased died without a will and without any written instructions of his funeral arrangements. In a case like this, the courts will use evidence and circumstantial factors to make a decision over who has the authority. The courts won’t necessarily apply the hierarchy as described above. Among other factors, because the spouse was the sole beneficiary of the estate she was given priority to make the funeral arrangements of the deceased. This case helps to show that there isn’t a specific system of determining who is responsible for making funeral arrangements. In conclusion, it’s always best for you to leave instructions and give loved ones an idea of your wishes to avoid dispute.

It’s always best to avoid intestacy and prepare your estate plan as early as possible. Remember- your estate plans can always be updated at a later date with ease. If you need help preparing your estate plan – the will, funeral arrangements, power of attorneys, etc., contact an experienced estate lawyer today. We can ensure that your funeral and estate are executed exactly as you’re expecting.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
January 20, 2022
Executor Passes Away, Who Finishes Administering the Will?
When a will writer dies, the executor named in their will handles the administration of the deceased’s estate, ensuring the estate is distributed as intended. This can be a lengthy process, especially when executors are handling large, complex estates. In some cases, the executor passes away before they’re able to finish the estate’s administration. When this happens, what happens to the original will writer’s estate? Who is responsible for finishing the estate administration? The Wills, Estates and Succession Act (WESA) provides guidance on who becomes responsible for the remaining administration of the estate.

The Executor’s Executor Administering Both Estates

As described in s.145 of the Wills, Estates and Succession Act (WESA),

“If a deceased will maker was an executor of a person who died before the will maker, the executor of the deceased will maker has all the rights, powers, rights of action and liabilities of the deceased will maker with respect to the estate of the deceased person.”

This means that the executor of the deceased executor’s will becomes the executor of both wills. For example, Terry writes a will naming Grace as his executor. Terry passes away and Grace begins administering Terry’s estate. Before completing the administration, Grace also passes away. In Grace’s will, she named Paul as her executor. After Paul has been granted probate on Grace’s will, he is to administer her estate. Further, Paul must finish Grace’s duties as Terry’s executor and administer the remainder of Terry’s estate. In the end, Paul is left administering both estates.

Executor Died Without a Will

Executors are able to refuse executorship before they begin administration.

Using the same example as above, let’s imagine that Grace never wrote a will, hence she doesn’t have an executor who will take on the role of both hers and Terry’s executor. In this case, somebody must apply for a grant of administration from the courts to finish Terry’s estate administration. As for Grace’s estate, she dies intestate. For more information, read our blog on who acts as executor when someone dies intestate.

Should multiple people apply to become Terry’s estate administrator, s.131 of the WESA specifies the following order of priority of who will take on the role:
1. A beneficiary of the will who has majority consent from all of the beneficiaries.
2. A person nominated by the beneficiaries who has majority consent from all of the beneficiaries.
3. A beneficiary of the will who has minority consent from all of the beneficiaries.
4. Any person the courts and the Public Guardian and Trustee consider to be appropriate.
To finish the application for the grant of administration, after applying for the grant they must remove the deceased as the executor and finally be granted probate as the new executor. From there, the new executor can finish the estate administration.

Executor Died Before the Will Writer

If the executor dies before the will writer, there is a different course of action in determining the executor. Since the estate administration hasn’t started yet, the alternate executor named in the will can take over, or the will writer can appoint a new executor. Will writers are able to name multiple alternate executors in case the primary executor is unable to or unwilling to take on the role. If there is no alternate executor named in the will, then a grant of administration must be obtained from the courts.

To avoid having an executor who you didn’t intend to administer your estate, we recommend naming alternate executors in your will. If you need assistance preparing your will, contact an experienced estate lawyer today. We will help to ensure your estate is handled exactly as your expecting, without any unexpected executors stepping in.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
May 25, 2021
How Assets Are Distributed When Someone Dies Without a Valid Will (Intestate)

If someone dies intestate (without leaving a valid will), the courts determine the estate’s distribution. Part 3 of the Wills, Estates and Succession Act (WESA) outlines what exactly is to be done when someone dies intestate. While the distribution of the estate can be straightforward in some cases, it can be unclear or complicated in others. In this blog, we’ll highlight some of the most common family situations and how intestacy laws, as described in WESA, will operate to distribute the estate.

Intestate With a Surviving Spouse and No Children

The entirety of the estate will be distributed to the spouse.

Intestate With a Surviving Spouse and Children (with the Spouse)

In BC, the Public Guardian and Trustee of British Columbia will manage a minor’s inheritance.

The spouse receives all the household furnishings, which are the personal property usually associated with the enjoyment of the spousal home. The spouse will also receive a preferential share in the intestate estate of the first $300,000. If the intestate estate is valued less than $300,000, the spouse will receive the entirety of the intestate estate – the children will not receive anything. If the estate’s value exceeds $300,000, the spouse also receives half of the excess value, and the children equally split the other half.

For example, if the intestate estate is valued at $1,300,000, the spouse would receive the household furnishings, the $300,000 preferential share and another $500,000 as half of the remainder of $1,000,000. In total, the spouse receives $800,000. The children would equally split the other $500,000.

Intestate With a Surviving Spouse and Children (with a Different Person)

In this scenario, the distribution is the same as above except the intestate estate preferential share is only $150,000. Looking at the same example, the spouse would receive the household furnishings, the $150,000 preferential share and $575,000 as half of the remainder of $1,150,000. In total, the spouse receives $725,000. The children would equally split the other $575,000. In this case, the children receive more of the intestate estate while the spouse receives less.

If There is No Spouse, and Surviving Children

The children equally split the entirety of the estate.

If There is No Spouse or Children

The testator’s parents receive the entirety of the estate. If both parents have died, the estate goes to the parent’s children (the testator’s brothers or sisters). When no siblings or parents are alive, the grandparents receive the estate. If there are no living grandparents, the grandparent’s descendants receive the estate. Further, it can be distributed to great-grandparents and their descendants. If there are no identifiable relatives to inherit, the government will receive the estate assets.

If there are multiple people of the same level of priority, the estate will be equally distributed to them. For example, if someone dies intestate without any parents, but has two surviving brothers and one surviving sister, each sibling will receive a 1/3 share of the estate.

While the procedures the courts will go through in determining how to distribute an intestate estate can be clear in specific circumstances, it’s always best to write a valid will. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your estate is distributed exactly as you want upon your passing.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

April 28, 2021