Dying Without a Will or Spouse: How Children Inherit in Ontario

A single parent has died without a valid will, and you are trying to understand who gets what. When there is no will, it is called an intestacy, and Ontario's Succession Law Reform Act sets out how the estate is distributed. The family does not get to choose the pattern. The Act does.

This article covers the situation where there is no spouse. It explains how the estate divides among children, what happens when a child died before the parent, and a few special cases that can change who counts. It is general information, not advice on your particular family.

When the children are the ones who inherit

On an intestacy, the people who can inherit are the deceased's spouse and closest next-of-kin. If there is no spouse, the property is distributed equally among the deceased's issue, which means their descendants. In most single-parent situations, that means the children.

It is worth checking whether there really is no spouse in the legal sense. For these rules, spouses are people who are married to each other. A common-law partner does not inherit when there is no will. A common-law partner may still apply to court for support from the estate as a dependant if the deceased did not make adequate provision, and that application generally cannot be made more than six months after the grant of letters probate or letters of administration.

A married spouse who was separated at the time of death also does not take the intestacy entitlements, if the separation meets the statutory test. That test looks at whether the spouses had lived apart for three years, or had a separation agreement, court order or family arbitration award, and were still living separate and apart because of the breakdown. The rule applies only where that qualifying event happened on or after January 1, 2022, so earlier separations follow different rules and need a closer look.

How the shares work among living children

The starting point is equality. Each child takes the same share as the others, with no extra weight for age, who cared for the parent, or who lived nearby. Those factors do not change the intestacy shares, although they may matter in other ways, such as a dependant claim.

When a child died before the parent

If a child or other descendant of the entitled degree died before the deceased, that person's share passes to their own issue. Grandchildren therefore step into the place of their deceased parent and divide that one share among themselves, rather than each receiving a full child's share.

This matters when siblings are not speaking to each other or when a grandchild did not know about the death. Everyone entitled should be identified before any distribution, because an overlooked grandchild can have a real legal claim.

Special cases that can change who counts

• Adopted children: from the adoption order, an adopted child is the child of the adoptive parent and stops being the child of the former parent, except where that person is the adoptive parent's spouse. Interests that had indefeasibly vested before the adoption order are not affected.
• Children born outside marriage: a person is the child of their parents, and parentage is set by the Children's Law Reform Act rather than by whether the parents were married.
• Children conceived before the death and born alive after it inherit as if born in the deceased's lifetime and surviving them.
• Children conceived and born after the death inherit only if the conditions in s. 1.1(1) of the Succession Law Reform Act are met.
• Children under 18: if a minor's share from an estate with no will is over $35,000, the money is paid into court and held by the Accountant of the Superior Court of Justice until the child turns 18. If it is under $35,000, it can be paid to the parent the child lives with, or to the person with lawful custody, to hold until the child turns 18.

When a beneficiary is under 18, the applicant must serve the Office of the Children's Lawyer. The $35,000 figure is set by regulation, so it is worth confirming the current amount.

Who handles the estate before the children are paid

Nobody inherits until someone has legal authority. The estate trustee is the only person with legal authority to manage or distribute an estate, and the court's certificate gives the authority to manage estate assets and pay estate debts. Funeral and burial expenses and debts are paid before the estate is distributed.

With no spouse, a close adult relative such as a child, parent, grandchild, sibling or nephew or niece can apply, and the court may appoint the relative it considers most appropriate. Administration may be granted to the next of kin, or to more than one. Anyone entitled to priority who does not join the application must sign a Renunciation, and the applicant files a Consent to Applicant's Appointment as Estate Trustee (Form 74G).

A bond is required when the deceased died without a will. It is for double the sworn value of the deceased's property unless a judge orders otherwise. A small estate may not need one unless a beneficiary is a minor or is incapable. Estates above $50,000 also attract Estate Administration Tax of $15 per $1,000 (or part) of the value over $50,000.

What to do next

• Confirm there is no will, and ask whether there was ever a marriage that had not legally ended or a qualifying separation.
• List every child, including adopted children, children born outside marriage and any child who died before the parent.
• For any child who died first, find out whether they left children of their own.
• Note the age of every beneficiary, since shares for those under 18 are handled differently.
• Agree on who will apply to be estate trustee and whether others will sign a Renunciation or Consent.
• Gather information on assets, debts and funeral costs before anyone distributes anything.
• Speak with a lawyer if the family cannot agree, if a relationship is unclear, or if the estate is large or complicated.

Frequently asked questions