Curious about acting as an administrator? Losing a loved one is never easy, and it can be even more challenging if they did not leave a Will. In British Columbia, when someone dies without a Will, we say they are “intestate.”

This guide will help you understand some of the issues involved in managing an estate where the deceased did not leave a Will.

Distribution of the Estate

With a Will:

The Will specifies exactly how the deceased’s assets are to be distributed among beneficiaries. This means the deceased has control over who gets what.

It also means the deceased can exclude people from the distribution of their estate.

Without a Will:

BC’s Wills, Estates and Succession Act (“WESA”) dictates how the estate is distributed. The estate is divided according to a set formula. The results of this formula might surprise or upset you. If you are acting as administrator, you must follow the formula set out in WESA.

For example, if the deceased was married, their spouse has a right to an interest in their spousal home, but it isn’t a given that they will receive the spousal home in its entirety.

If he deceased left behind a spouse and children, the spouse gets the first $300,000 (if the children are from the current marriage) or $150,000 (if the children are from a previous relationship), and the remainder is divided between the spouse and children. If there are no immediate family members, the estate may go to more distant relatives, and if no relatives are found, the estate goes to the government.

In other words, it isn’t an automatic given that a spouse or child would inherit the estate all by themselves. It also means the government decides who your beneficiaries should be.

Appointment of Executor or Administrator

With a Will:

The will-maker names an executor in their Will. This is the person responsible for managing the estate. This executor has the powers granted in the Will to administer the estate.

Without a Will:

If there is no Will, the court appoints a person to manage the estate. This person is called an administrator.

Family members can apply to the court for this role. Consents must be obtained from anyone who has an equal or prior right to apply. If no one steps forward, the court can appoint an administrator.

The administrator’s powers are limited to those outlined in WESA or common law. This can make managing an estate harder to do.

Powers and Duties

With a Will:

The Will can grant the executor specific powers, such as the ability to sell property, invest estate funds, and make distributions to beneficiaries. These powers can speak to specific assets, and they can provide flexibility in managing the estate.

Without a Will:

If you are acting as administrator of an estate, your powers are restricted to those provided by WESA and common law. This can limit the administrator’s ability to manage the estate effectively and might require additional court applications for certain actions.

Need for Bonding

With a Will:

Generally, an executor who has been named in a Will does not need to provide a bond. A bond is a type of insurance that protects the estate in case the executor mishandles it.

Without a Will:

If you live outside of BC or if the beneficiaries request it, the court may require the administrator to be bonded. This ensures that the administrator will manage the estate responsibly and protects the estate from potential mismanagement.

With a Will:

The executor can generally proceed with their duties without needing to obtain consents from other family members.

Without a Will:

The administrator must obtain consents from anyone with an equal or prior right to apply for the role. This can involve additional paperwork and delays in the administration process.

Conclusion

Having a Will can significantly simplify the process of managing an estate and ensure that the deceased’s wishes are followed. Without a Will, the estate is managed according to the law (rather than the deceased’s wishes). This might now not align with what the deceased would have wanted. Understanding these differences can help highlight the importance of creating a Will to provide clear instructions and ease the burden on your loved ones.

Contact us if you would like a consultation about your duties when you act as an administrator.