After settling into a new life in Canada, it’s natural to assume that if something happens to you, your assets will automatically go to your spouse or children as you would wish. Many people believe a will is only for those with complicated finances or unusual requests. This is a common and dangerous misconception.

When you die without a will in Canada, you are said to have died “intestate.” In this situation, you don’t get to decide who receives your property or who will be in charge of your estate. Instead, the provincial government’s rules take over, and the outcome is often not what families expect. For immigrants with ties to other countries, the process can become even more complex. Understanding what really happens is the first step to protecting your family.

The Government’s Plan for Your Assets: WESA’s Intestacy Rules

If you don’t have a will, you can’t leave your assets to a specific person. Instead, your estate is divided according to a strict formula set out in British Columbia’s Wills, Estates, and Succession Act (WESA). Your intentions, no matter how clearly you stated them during your life, will not be considered.

The distribution rules depend on which family members survive you:

• If you have a spouse but no children: Your entire estate goes to your spouse.
• If you have a spouse and children: This is where most people are surprised. Your spouse does not get everything. Instead, your spouse is entitled to the first $300,000 of your estate. The remainder is then divided, with 50% going to your spouse and the other 50% being split equally among your children.
• If you have no spouse but have children: Your entire estate is divided equally among your children.

This rigid formula can create unintended consequences. It could force the sale of a family home to pay out the children’s share or leave a surviving spouse with fewer financial resources than intended.

You Lose Control: Appointing an Administrator

A will allows you to name an “executor”—a person you trust to manage your estate. Without a will, there is no executor. Instead, a family member (usually your spouse) must apply to the court to be appointed as the “administrator.”

This process creates several problems:

• It Causes Delays: Applying to the court takes time and can stall the process of settling your affairs.
• It Can Create Conflict: If multiple family members feel they should be the one in charge, it can lead to painful legal disputes.
• It Adds Costs: The court may require the administrator to purchase an “administration bond,” which is an insurance policy to protect the estate. This is an added expense that reduces the inheritance left for your loved ones.

The Most Critical Risk: Guardianship of Minor Children

For parents of young children, a will is not just important—it is absolutely essential. A will is the only legal document where you can appoint a guardian to care for your children if you and your spouse pass away.

If you die without a will, you have no say in who will raise your children. The court will make that decision for you. While the court will act in the children’s best interest, the person appointed may not be who you would have chosen, and the uncertainty can cause immense distress and conflict among surviving family members.

Essential Elements of a Simple Will

While drafting your own will is risky due to the strict legal requirements in BC, understanding its components can help you prepare. This information is for educational purposes and is not a substitute for professional legal advice. A simple will should clearly address the following points:

1. Declaration and Revocation: It must state that this document is your last will and testament, and, crucially, that you revoke all previous wills and codicils. This prevents confusion with any older documents.
2. Appointment of an Executor: You must name an Executor (and at least one alternate) to be in charge of carrying out your will’s instructions. This person should be someone you trust, who is organized, and preferably lives in Canada to avoid tax complications.
3. Appointment of a Guardian: If you have minor children (under 19 in BC), you must name a Guardian (and an alternate) to care for them. This is arguably the most important function of a will for young parents.
4. Distribution Plan: This is the core of the will. It details who gets what. This is often done in two parts:
   • Specific Gifts: You can leave specific items or sums of money to specific people (e.g., “my watch to my brother, Mark”).
   • The Residue: This clause deals with everything else left in your estate after debts are paid and specific gifts are distributed. A typical clause would be, “I give all the rest and residue of my estate to my spouse, Jane.”
5. The Signing (Attestation): For a will to be valid in BC, it must be signed at the end by the will-maker in the presence of two witnesses, who must also sign the will in the will-maker’s presence. The witnesses cannot be beneficiaries in the will, nor can they be the spouse of a beneficiary. Getting this step wrong will invalidate the entire document.

Conclusion: Don’t Leave it to Chance

Dying without a will means surrendering control of your legacy to a government formula. It creates uncertainty, can lead to unintended and surprising outcomes for your loved ones, and almost always results in higher costs and longer delays.

The only way to ensure your assets are distributed according to your wishes, to appoint the person you trust to manage your affairs, and to name a guardian for your children is to have a valid will.

Check out our other article on will here: https://thesouthafricaninstitute.ca/estate-planning-for-south-african-immigrants/

If you would like a free 30-minute consultation, please contact Blaine Cowan at Veronica Armstrong Law Corporation. Blaine’s email is [email protected]. Veronica Armstrong is the owner of Veronica Armstrong Law Corporation. She obtained her law degree at the University of the Witwatersrand and practised law in South Africa before immigrating to BC.