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A “living will” (or Advance Directive) is a legal document in BC that outlines your wishes for medical treatments and end-of-life care if you are unable to communicate. Its purpose is to guide healthcare professionals and your loved ones about the types of medical interventions you do—or do not—want. However, Advance Directives do not address:

1. Ownership or distribution of your assets

2. Financial arrangements or estate administration

3. Real property transfers

Because these healthcare instructions do not deal with the transfer of property or the distribution of an estate, having a living will does not eliminate or reduce the need for probate.

What is Probate and How Can It Be Avoided or Minimized?

Probate is the legal process of verifying the validity of a will and confirming the executor’s authority to act on behalf of the deceased’s estate. In BC, the Wills, Estates and Succession Act (WESA) governs how wills are validated and how estates are administered.

To potentially avoid or minimize probate (and related fees), you typically need to look at estate planning strategies such as:

1. Joint Ownership with Right of Survivorship

   • Holding property as “joint tenants” allows ownership to pass directly to the surviving owner without going through probate.

2. Beneficiary Designations

   • Registered accounts (e.g., RRSPs, TFSAs) and life insurance policies can bypass probate if you have valid beneficiary designations.

3. Trusts

   • Certain types of trusts can hold assets and distribute them without needing probate. However, setting up a trust can be complex and may require professional legal and tax advice.

A living will or Advance Directive plays no role in any of these financial or legal arrangements.

How an Advance Directive Fits into an Estate Plan

While it does not help avoid probate, an Advance Directive (or “living will”) is still an important piece of a complete estate plan. It ensures:

1. Peace of Mind

   • You have documented instructions for healthcare decisions if you become unable to communicate.

2. Reduced Family Conflict

   • Loved ones have clear guidance on your treatment preferences, which can alleviate stress and disagreements.

3. Alignment With a Representation Agreement

   • In BC, you might also consider a Representation Agreement, which appoints someone to make healthcare (and sometimes routine financial) decisions if you are incapacitated.

Conclusion

While a living will/Advance Directive is essential for ensuring your healthcare wishes are honored, it does not influence probate. To minimize or avoid probate, you should look into ownership structures (like joint tenancy) or other estate planning tools (beneficiary designations, trusts, etc.). For comprehensive guidance, consult an experienced BC estate lawyer or a qualified financial planner to develop a strategy that meets your personal and financial goals.

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In British Columbia, if a person passes away without leaving a valid will, they are said to have died intestate. When this happens, the distribution of their assets—including their home—is governed by the Wills, Estates and Succession Act (WESA). The process can become complex, as the law sets out specific rules and priorities for who gets what and how. Below is a straightforward guide to understanding what happens to a house in BC when someone dies without a will.

1. The Concept of Intestacy

Intestacy means the deceased did not leave a valid will or other binding instructions about their estate. In such cases, the law determines how assets should be distributed, which can sometimes lead to outcomes the deceased might not have intended. For example, a house may need to be sold to distribute funds among heirs, or ownership may pass to a family member that the deceased did not anticipate.

2. Who Manages the Estate?

When there’s no will appointing an executor, an administrator must be appointed by the BC Supreme Court to settle the estate. Here’s the basic process:

1. Application for Letters of Administration

   • An eligible family member or another interested party applies to the court for Letters of Administration. Once granted, they become the estate’s administrator with legal authority to manage and distribute assets, including real estate.

2. Identifying and Valuing the Estate’s Assets

   • The administrator compiles an inventory of all assets and debts. This includes determining the fair market value of the house, which may involve hiring a real estate appraiser.

3. Paying Debts and Taxes

   • Estate debts (mortgages, credit cards, property taxes, etc.) must be settled before any distribution occurs.

4. Distribution According to Law

   • After debts and taxes are paid, the administrator distributes the remaining assets under the rules set out in WESA.

3. Intestate Succession in BC: Who Gets the House?

3.1 Spouse and Children

If the deceased was married (or in a marriage-like relationship for at least two years) and had children, the division of assets follows certain guidelines:

• Spousal Preferential Share

  • If the children are all from the same spouse/partner, the spouse receives a preferential share of $300,000 plus a share of any remaining assets.

  • If there are children from a previous relationship, the preferential share drops to $150,000.

• Remaining Estate

  • Whatever is left after the preferential share is divided between the spouse and children (the exact proportion depends on whether there are other children and whether they are the children of the surviving spouse).

Example

If the house forms the bulk of the estate, the spouse might choose to:

1. Sell the House and Split the Proceeds with the children (according to the formula).

2. Buy Out the Children’s Share and keep the property.

3. Negotiate a Settlement if there’s enough cash in the estate to compensate the children.

3.2 Spouse Only, No Children

If the deceased had a spouse/partner but no children, the entire estate typically goes to the spouse, including the house—provided it’s in the deceased’s name alone and part of the estate assets.

3.3 Children Only, No Spouse

If there’s no surviving spouse but there are children, the children inherit the entire estate, divided equally among them. The house may need to be sold unless one child buys out the others or they decide to co-own it.

3.4 No Spouse, No Children

If the deceased has no spouse and no children, other relatives (parents, siblings, nieces/nephews, etc.) inherit the estate in an order of priority laid out by WESA. In extreme cases where no eligible relatives can be found, the estate (including the house) escheats to the provincial government.

4. Joint Ownership vs. Sole Ownership

Not all homes automatically fall under “intestate property.” Ownership structure matters:

• Joint Tenancy with Right of Survivorship

  • If the deceased owned the property jointly with someone else as joint tenants, the property typically passes directly to the surviving joint tenant, outside of the estate.

  • This bypasses intestacy rules and often does not require probate to transfer title.

• Tenancy in Common

  • If the deceased was a tenant in common, their share of the house becomes part of the intestate estate and is distributed under WESA.

5. The Role of Probate (or Administration) and Fees

Even though there’s no will, the administrator will likely need to obtain Letters of Administration before the land title can be transferred or sold. During this process:

1. Probate (Administration) Fees

   • BC charges administration fees (similar to probate fees) based on the estate’s fair market value. If the house is a major asset, expect a significant fee.

2. Court Supervision

   • The court ensures the estate is handled according to provincial law. This supervision helps prevent conflicts among potential heirs.

3. Timeframe

   • Settling an intestate estate often takes longer than an estate with a well-structured will, due to potential disputes or the need to identify all heirs.

6. Common Issues and Disputes

• Family Disagreements: When there’s no will, family members may disagree on how to handle the house—some might want to sell, others might want to keep it.

• Complex Ownership: Multiple owners, mortgages, or liens (e.g., unpaid property taxes) can complicate the transfer or sale of the house.

• Creditor Claims: Outstanding debts against the property may reduce what heirs ultimately receive.

7. Avoiding Intestate Pitfalls: The Importance of a Will

To prevent delays, disputes, and unwanted outcomes, having a valid will is the best course of action. A will lets you:

• Name an Executor: Someone you trust to handle your estate.

• Specify Beneficiaries: Clearly outline who should inherit your house and under what conditions.

• Potentially Reduce Costs: Streamline the estate-settlement process, saving your loved ones time and money.

Conclusion

When someone dies without a will in British Columbia, the house they leave behind doesn’t simply vanish— it’s distributed according to WESA’s rules of intestacy. However, this process can be complicated and time-consuming, particularly if there are multiple heirs or disputes. If you—or someone you know—is facing intestacy, it’s crucial to seek legal advice to ensure the property is managed and distributed as efficiently and fairly as possible. And for those wanting to protect their loved ones from this scenario, drafting a valid will remains the simplest, most effective solution. 

Ready to start planning?

Let’s turn your dreams into reality. Schedule your personalized planning session today and take the first step toward your next chapter!

You are not alone. Let the West Vancouver Real Estate Group show you how to get there.

Live deliberately. Live fully.
We’re here to help you make it happen.
www.thewestvancouverrealestategroup.com