It鈥檚 not as horrible as you might think.
In fact, there are circumstances when having a will, or not, wouldn鈥檛 make much difference at all.
I suspect that most people are concerned about what would happen to their stuff: 鈥淚f I don鈥檛 have a will naming beneficiaries, do my assets go to the government?鈥�
The law provides for default beneficiaries if you haven鈥檛 designated beneficiaries in a will.
You can access a link to 鈥淒ivision 1 鈥� Distribution of Estate When There is No Will鈥� of British Columbia鈥檚 Wills, Estates and Succession Act (the 鈥淎ct鈥�) here ().
The legislation starts by saying that if you die with a spouse and no living descendant, the default beneficiary is your spouse.
That default works for most people in that circumstance.
Not having a will also means no appointed executor. You might ask: 鈥淗ow can an estate be dealt with if there鈥檚 no executor?鈥�
Easy-peasy!
There鈥檚 another provision of the Act that gives a priority list of people who the court can appoint to administer the estate if there鈥檚 no will. It鈥檚 section 130 which can be accessed here ().
The top of the list is your spouse.
But, you might ask: 鈥淒oes it cost a bunch more money to administer an estate using the defaults of the Act than if there was a will?鈥�
The answer is no.
The process of obtaining an estate grant (commonly known as probate) is needed regardless of whether or not there is a will. There are just slightly different forms if there鈥檚 no will.
The same probate fees will have to be paid.
And the estate grant process shouldn鈥檛 cost any more in legal fees.
That might beg the question: 鈥淲hy go to the expense of having a will!?鈥�
There are many reasons.
One key reason is that the default beneficiary provisions don鈥檛 work out well a lot of the time.
Consider, for example, a scenario where you have a spouse and a child.
Most people would want their spouse to be their sole beneficiary, with their estate going to their child only if their spouse predeceased them.
The default provisions are a little complicated. A lump sum goes to the spouse ($150,000.00 or $300,000.00, depending on whether the child is also the spouse鈥檚), with the balance divided between the spouse and the child.
The other default provisions are kind of fun to read through. I invite you to read through section 23 of the Act, which sets out a dizzying set of defaults if you die without a will and have no spouse. It goes through an expanding family tree trying to find someone the deceased is related to and goes so far as great-grandparents and their descendants!
And yes, the very end of that paragraph says that if none of those defaults apply, 鈥渢he whole estate passes to the government鈥︹��!
Another important reason for a will is to deal with minor children.
If you don鈥檛 have a will that appoints a guardian and a trustee of minor children, there is a very expensive government body called the Public Guardian and Trustee of British Columbia (鈥淧G&T鈥�) that must handle their financial affairs.
And unless there is a trust set up in the will that requires a child鈥檚 inheritance to be held for them until they are more mature, they will have that lump sum on their 19th birthday.
Most parents want provisions that hold back a child鈥檚 inheritance until they reach age 30, with a trustee able to use their discretion to dole out amounts that might be helpful for the child鈥檚 education and other reasonable needs until they reach that age.
There are many other reasons why a properly drafted will can be of significant value, but those will have to wait for future columns.
Effective estate planning can be very simple. It can also be very complex. I encourage you to consult with an estate planning lawyer so that you can be properly advised and make an informed decision about what mechanisms to put in place to ensure your wishes are followed.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul鈥檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul鈥檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
