Do Nieces, Nephews and Cousins Inherit Without a Will in Ontario?

When someone dies without a valid will and leaves no spouse, children or parents, the family tree can feel wide open. You may be a niece, nephew, grand-niece or cousin wondering whether you are entitled to anything, or whether the estate simply goes to the government.

Ontario's Succession Law Reform Act sets out a fixed order of who inherits when there is no will. This article walks through the part of that order that reaches further-out relatives, and then explains who can apply to administer the estate.

Where nieces, nephews and cousins fit in the order

On an intestacy, the people who can inherit are the deceased's spouse and closest next of kin. Each group in the order is considered only if the group before it is empty. Nieces, nephews and cousins come near the end of that order, so they inherit only when there is no one above them.

Two points about the people at the top of the order matter here. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will. And married spouses who were separated at the time of death, as the Act defines separation, do not take the spouse's entitlements, but this rule applies only where the qualifying separation event happened on or after January 1, 2022. In either case, the estate may reach more distant relatives sooner than you would expect.

Siblings first, then nieces and nephews

If there is no spouse, issue or parent, the estate goes to the surviving brothers and sisters equally. A brother or sister who died before the deceased does not simply drop out. That sibling's share goes equally to their children, who are the deceased's nieces and nephews.

Only if there is no spouse, issue, parent, brother or sister does the estate go equally to the nephews and nieces. This step works "without representation". The children of a niece or nephew who has died do not take that person's share. How this applies to a particular family depends on the facts, so it is worth confirming with a lawyer.

Cousins and other next of kin

If there is no spouse, issue, parent, brother, sister, nephew or niece, the estate goes equally to the next of kin of equal degree of consanguinity, again without representation.

Degrees of kinship are counted up from the deceased to the nearest common ancestor and then down to the relative. How the count works out for a particular family tree is worth confirming with a lawyer.

• Half-blood relatives inherit equally with whole-blood relatives of the same degree, so half-siblings share equally with full siblings.
• A person is the child of their parents whether or not the parents were married, so a relative born outside marriage is counted.
• An adopted child is treated as the child of the adoptive parent from the adoption order and stops being the child of the former parent, except where that person is the adoptive parent's spouse, and all relationships are determined on that basis. The rule does not affect interests that had indefeasibly vested before the adoption order was made.

What if no relatives can be found?

If there is no surviving spouse, issue, parent, brother, sister, nephew, niece or next of kin, the property becomes the property of the Crown and the Escheats Act, 2015 applies. The Public Guardian and Trustee may take possession of it in the name of the Crown.

That is not always the end of the matter. A person who proves a legal claim to escheated property to the satisfaction of the Public Guardian and Trustee is entitled to receive it, which covers a lawful heir located later. The Lieutenant Governor in Council may also, by order, grant escheated property to a person with a moral claim on the deceased.

Who can administer the estate, and what to do next

Inheriting and administering are different things. The estate trustee is the only person with legal authority to manage or distribute an estate, and the court's certificate gives that authority. Without a will, administration may be granted to the spouse or a person in a conjugal relationship with the deceased, to the next of kin, or to both. After a spouse or common-law partner, a close adult relative such as a sibling or nephew or niece can apply, and the court may appoint the relative it considers most appropriate.

A bond is required when the deceased died without a will. It is for double the sworn value of the property, unless a judge orders otherwise.

There are limited exceptions. The surviving-spouse exemption applies only where there is a spouse, so it will not help in a case like the one in this article. A small estate needs no bond unless a beneficiary is a minor or is incapable under the Substitute Decisions Act, 1992. A judge may also reduce or dispense with the bond in special circumstances.

• Confirm there is no will, and look for a spouse, children, parents and siblings.
• List the living relatives in each degree, including half-blood, adopted and non-marital relatives.
• Find out who has priority to apply and whether they will apply or renounce.
• Gather information on assets and debts, since funeral costs and debts are paid before distribution.
• Speak with a lawyer before anyone distributes or sells anything, because only the estate trustee has authority.

Frequently asked questions