Does a Grandchild Inherit if a Parent Died Without a Will in Ontario?

Your parent died before your grandparent, and now your grandparent has died without a will. You may be wondering whether you, and your cousins, are left out because the person who would have inherited is gone.

In most cases you are not. Ontario's rules let a deceased child's descendants step into that child's place. This article explains how that works, how a surviving spouse changes the picture, and what to do next.

The basic rule: children share equally

When a person dies without a valid will, it is called an intestacy, and Ontario's Succession Law Reform Act sets out how the estate is distributed. The people who can inherit are the spouse and the closest next-of-kin.

Subject to the spouse's rights, the property is distributed equally among the person's issue, which means their descendants.

When a parent died first: grandchildren step in

If a child died before the person who left no will, that child's share passes to their own issue. Grandchildren therefore take their deceased parent's share, and the same rule applies to later generations.

Lawyers sometimes call this taking by representation. In plain words, you stand in your parent's place. How a share is divided among several grandchildren of one late parent can depend on the family tree, so it is worth confirming with a lawyer.

What changes when there is a surviving spouse

A surviving spouse comes first. A child who died before the intestate but left issue alive at the date of death is counted as living when the spouse's share is calculated. For example, with two children where one has died leaving grandchildren, the spouse still gets one-third.

The preferential share is $350,000 for people who die on or after March 1, 2021, and $200,000 for deaths before that date. It is measured against the net value, which is the property after paying the charges on it, the debts, funeral expenses and administration expenses.

Only a married spouse counts here. A common-law spouse does not inherit when there is no will. Spouses who were separated at death may also fall outside the spousal entitlements if they had lived apart for three years, or had a written separation agreement, a court order or a family arbitration award, and were still living separate and apart because of the breakdown, but this rule applies only if that event happened on or after January 1, 2022.

Situations that can change who counts as a child or grandchild

• Adoption: 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.
• Birth outside marriage: a person is the child of their parents, and parentage does not depend on whether the parents were married.
• Conceived before the death and born alive after it: these descendants inherit as if born in the deceased's lifetime and surviving them.
• Conceived and born after the death: such a descendant inherits only if the conditions in s. 1.1(1) are met.
• Nieces and nephews work differently: where there is no spouse, issue, parent, brother or sister, the estate goes equally to nephews and nieces without representation, so the children of a deceased niece or nephew do not take that person's share.

What to do next

• Confirm that there is no will, including a will that covers only part of the estate.
• Write out the family tree: the spouse, every child, and any child who died first along with their own children.
• Collect proof of relationships, such as birth and adoption records, and the date of death.
• Remember that only the estate trustee has authority to manage or distribute the estate.
• Speak with a lawyer if the shares, the spouse's entitlement or a possible adoption is unclear.

With no will, the spouse or common-law partner usually has the first right to apply to administer the estate, and a close adult relative such as a child, parent, grandchild, sibling or nephew or niece can apply after them. If a grandchild under 18 is entitled to a share, the applicant must serve the Office of the Children's Lawyer.

Frequently asked questions