Zachary Rogers, Associate
Clark Wilson LLP
Under the the Wills, Estates and Succession Act (WESA), there is a mandatory distribution scheme for estates when an individual dies without a will. However, what happens to the guardianship and inheritance of your minor children, if you die without a will?
Guardianship of Minor Children
Under British Columbia’s Family Law Act, there is a distinction between a “parent” and a “guardian”. In many cases, a child’s parents are also the child’s guardians, however, that is not necessarily the case. Following a divorce, for example, one parent may become a child’s sole guardian, while the other parent will give up or lose his or her guardianship rights and responsibilities by Court Order.
- If a child has two parents and both are the child’s guardians, and if one of those parents/guardians dies without a will or without having made a guardian appointment, the surviving parent/guardian will have all parental responsibilities with respect to the child.
- If a child has two parents and only one is the child’s guardian, and if the non-guardian parent dies without a will, there will be no change made to the guardianship of the child.
- If a child has two parents, and only one is the child’s guardian, and if the guardian parent dies without a will or without having made a guardian appointment, the surviving non-guardian parent will not automatically become the guardian of the child.
- Whenever a child’s sole guardian dies without a will or without having made a guardian appointment, the Public Guardian and Trustee (the PGT) will become responsible for the child’s financial and legal affairs, and the Ministry of Children and Family Development will become responsible for the child’s living arrangements, health, and education.
It is possible for your child’s surviving parent or another family member to apply to Court to become the guardian of your minor child. Such applications could be costly, and may or may not be successful.
Note: the spouse of a minor child’s guardian does not have any rights with respect to the minor child, except by Court Order (such as with an adoption). For blended families, it is possible that a minor child could be separated from his or her step-parent or step-siblings, if their step-parent was not a guardian of the minor child, and the minor child’s parent/guardian dies without a will or without having made a guardian appointment.
Inheritances of Minor Children
The age of majority in British Columbia is 19.
Minor children do not receive access to their inheritances right away – their shares are held in trust until they reach the age of 19. The Public Guardian and Trustee of British Columbia (the PGT) is appointed, by default, the trustee of minor children’s trusts. This means that your spouse and/or your children would need to ask the PGT to approve withdrawals from the trust to cover expenses like clothing, education, sports involvement, vacations, etc. The PGT may or may not approve those requests.
It is possible for your spouse or another family member to apply to Court to become the trustee of your minor children’s trusts, or to challenge the PGT’s denial of any requests. Such applications could be costly, and may or may not be successful.
Adult children (those 19 years of age or older) will receive their share outright (and previously minor children will receive their share from trust as soon as they turn 19 years of age). Some feel that a 19 year old should not have unrestricted access to sudden large gifts, but that is what would happen if you die without a will.
Why Create a Will?
While it may be comforting to know that there is a procedure to distribute your assets if you die without a will, many decide to “override” the default scheme by preparing a will that will distribute their estate in a different fashion – one more in line with their wishes.
With a will, you can:
- Designate who is to be the guardian of your minor children;
- Prevent all, or a large portion, of your estate from being held in trust for your minor children;
- Set the age(s) at which your children will receive their inheritance (perhaps delay the distribution until age 25, for example);
- Designate your spouse or another trusted person to be the trustee for any trust funds for your minor children, instead of the PGT; and
Save your spouse (or other family members) from having to spend money unnecessarily on legal fees for Court applications to become the guardian of your minor children, to become the trustee of your minor children’s trusts, or to challenge the PGT’s denial of any requests for reimbursement from the trusts.
This article is intended as a general source of information only and should not be considered or relied upon as personal and/or specific financial, tax, pension, legal, or investment advice.
BC’s Make-a-Will Week is October 4 – 10, 2020. MAWW is a Ministry of Justice campaign that brings awareness to the importance of creating and maintaining an up-to-date will, which ensures that the people, charities and organizations you care about most receive the benefit of your estate.
In conjunction with the Leave a Legacy Vancouver program of the Canadian Association of Gift Planners, we are sharing tips and info throughout the week to help our readers learn more about wills and their pertinence in ensuring that final wishes are understood and executed. Visit our blog all week for key posts related to MAWW and will preparation.