Inheritance Tracing: Finding Heirs When There Is No Will in Ontario

When someone dies without a will, the law decides who inherits. The first job is working out who those people are and whether they can be found.

This article explains how heirs are identified in Ontario, what tracing involves, and what commercial heir hunters generally do.

Who the heirs are under Ontario's rules

With no issue, the spouse takes everything. With issue, the spouse takes the preferential share and then one-half of the residue (one child) or one-third (two or more children). The rest goes equally among the issue. With no spouse or issue, the estate goes to the parents, then to brothers and sisters.

The spouse's preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for deaths before that date.

There are important exceptions. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will, and their remedy is a dependant support claim. Whether a separated spouse loses intestate entitlements can depend on when the person died and on how the Act defines separation, so it is worth confirming with a lawyer.

How estate trustees trace relatives

The estate trustee holds the property for the people entitled, subject to the deceased's debts. So the trustee needs a reliable picture of the family.

• Speak with relatives and friends, and look through address books, letters and papers.
• Collect birth, marriage and death records that link people to the deceased.
• Check for unborn or unascertained interests, where the Office of the Children's Lawyer should also be served.
• Keep a written record of every search step you take.

What heir hunters do

Heir hunters, also called probate genealogists, are private firms that research family trees to find people who may be entitled to an estate. They may contact a relative and offer to prove the claim in exchange for payment.

Contact from an heir hunter does not change who is entitled, and it does not change the estate trustee's duties. If you are approached, read any agreement carefully and have a lawyer review it before signing. You can also ask the estate trustee directly what you may be owed.

When an heir cannot be found

An estate trustee may apply to the Superior Court of Justice for the court's opinion, advice or direction without starting an action. This is the usual route for a beneficiary who cannot be found.

Advertising for creditors does not protect a trustee who distributes without a missing beneficiary's share. The protection a trustee gets from giving notice to creditors does not apply to heirs and next of kin claiming as such. When a judge passes final accounts and finds money belonging to a person whose address is unknown, it must be paid into court.

Dependants may also claim. If the deceased did not make adequate provision for a dependant's proper support, the court may order support from the estate. Once the estate trustee is served with notice of a support application, they must not distribute the estate unless all persons entitled to apply consent or the court orders it.

What to do next

• If you are the estate trustee, record every relative you know of and every search you make.
• Do not distribute until you are confident all entitled heirs are identified.
• If an heir is missing or a minor is involved, get legal advice on court direction and notice.
• If you are a possible heir, gather proof of your family link and contact the estate trustee.
• If you were a common-law partner or dependant, ask a lawyer about a support claim without delay.

Frequently asked questions