Do Grandchildren Inherit Without a Will If Their Parent Died First in Ontario?

When someone dies without a valid will in Ontario, the law decides who inherits. That can feel unsettling if one of the person's children died before them and left children of their own. Many families wonder whether those grandchildren are simply left out.

They are not, but the rule is narrower than people expect. This article explains when grandchildren step into a parent's place, how that affects a surviving spouse's share, and what changes if a grandchild is under 18.

The basic rule: a grandchild takes the parent's place

When there is no valid will, it is called an intestacy, and Ontario's Succession Law Reform Act sets out how the estate is distributed. Subject to any rights of a spouse, the property is distributed equally among the person's issue, meaning their descendants.

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.

The key point is that a grandchild steps in only through a parent who died first. If the grandchild's parent is alive, that parent takes the share and the grandchild does not inherit alongside them.

How a surviving spouse affects the split

If there is a spouse and children, the spouse takes the preferential share first when the estate's net value is more than that amount. If the net value is no more than the preferential share, the spouse takes the whole estate. The preferential share is $350,000 for people who die on or after March 1, 2021. For deaths before that date, it is $200,000.

Net value means the value of the property after paying the charges on it and the debts, funeral expenses and administration expenses. So the starting figure is not the gross value of everything the person owned.

With one child, the spouse gets one-half of what is left after the preferential share. With more than one child, the spouse gets one-third and the children share the rest. A child who died first but left issue alive at the date of death is counted as living for this purpose. For example, with two children where one has died leaving grandchildren, the spouse still gets one-third.

Only a spouse who was married to the deceased counts under these rules. A common-law spouse does not inherit when there is no will. Married spouses who were separated at the time of death, as the law defines it, do not get the spouse's intestacy entitlements either, and that rule applies only to qualifying separation events on or after January 1, 2022.

A worked example

Take a person who dies on or after March 1, 2021 without a will. They leave a spouse, one living child, and two grandchildren whose parent (the person's other child) died earlier. After debts, funeral and administration expenses, the net value is more than the preferential share. The spouse first takes the preferential share of $350,000, and the rest is divided under the rules above.

So the spouse's total is the preferential share plus one-third of what is left. If the same person had died before March 1, 2021, the preferential share would have been $200,000 and the numbers would change. Always check the date of death before using any figure.

If there were no surviving spouse, the estate would simply be divided equally among the issue, with the grandchildren sharing their late parent's portion.

Special situations to watch for

• Partial intestacy: if there is a will that does not deal with everything, the intestacy rules can still apply to the part left over. A spouse given less than the preferential share takes the shortfall from the intestate property.
• Late-born descendants: a descendant conceived before the death and born alive after it inherits as if born in the deceased's lifetime and surviving them.
• Adopted grandchildren: from the adoption order, an adopted child is the child of the adoptive parent and stops being the child of the former parent, with limited exceptions, and relationships are determined on that basis.
• Parents who were not married: parentage is set by the Children's Law Reform Act, not by whether the parents were married.
• Posthumously conceived descendants inherit only if specific statutory conditions are met, so this needs legal advice.

If a grandchild is under 18

When a beneficiary is under 18, the applicant must serve the Office of the Children's Lawyer. 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 the share is under $35,000, the money can be paid to the parent the child lives with, or to the person with lawful custody, to hold until the child turns 18. That threshold is set by regulation, so it is worth confirming the current figure.

What to do next

Only the estate trustee has legal authority to manage or distribute the estate, and that authority comes from the court's certificate. With no will, the spouse usually has the first right to apply, followed by close adult relatives. A bond is generally required when the deceased died without a will.

• Confirm the date of death, because it decides the preferential share.
• List every child and whether each was alive at the date of death.
• Note any grandchildren, their ages, and whether any were adopted.
• Gather information on assets, debts, funeral costs and any named beneficiaries.
• Speak with an estate lawyer before anyone distributes money or signs documents.

Frequently asked questions