No Heirs Found: When an Ontario Estate Goes to the Crown

When someone dies in Ontario without a valid will, the law decides who inherits. Most estates end up with a spouse, children or other close relatives. Sometimes no one can be found, and people wonder what happens to the property.

This article walks through the order of relatives, how closeness of kinship is counted, and what happens if no heir exists. It also explains how an heir found later, or someone with a moral claim, can still ask for the property.

The order of relatives when there is no will

A death without a valid will 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 deceased's spouse and closest next-of-kin. The Act works through the relatives in the order below, and each group depends on who survived the person who died.

• Spouse and no issue (descendants): the spouse takes the whole estate absolutely.
• Spouse and issue: if the net value of the estate is no more than the preferential share, the spouse takes the whole estate, and if it is more, the spouse first takes the preferential share and then one-half of what is left if there is one child, or one-third if there is more than one child, with the issue sharing the rest equally.
• Issue and no spouse: the estate is distributed equally among the issue.
• The preferential share is $350,000 for people who die on or after March 1, 2021, and $200,000 for deaths before that date.
• The spouse's entitlements do not apply if the spouses were separated at the time of death, which means they had lived apart for three years, or had a written separation agreement, a court order or a family arbitration award settling their affairs after the marriage broke down, and were still living separate and apart because of that breakdown when the death occurred.
• This separation rule applies only if the qualifying event, such as the three years apart or the agreement, order or award, happened on or after January 1, 2022.
• No spouse and no issue: the estate goes to the parents equally, or to the surviving parent absolutely.
• No spouse, issue or parent: the estate goes to the surviving brothers and sisters equally, and the children of a sibling who died earlier take that sibling's share.
• No spouse, issue, parent, brother or sister: the estate goes equally to the nephews and nieces, without representation, so the children of a deceased niece or nephew do not take that person's share.
• None of those: the estate goes equally to the next of kin of equal degree of consanguinity, without representation.

How degrees of kinship are counted

Degrees of kinship are counted up from the deceased to the nearest common ancestor and then down to the relative. A relative with fewer steps is closer than one with more. Half-blood relatives inherit equally with whole-blood relatives of the same degree, so half-siblings share equally with full siblings.

Some relationships need care. 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, and all relationships are determined on that basis. That rule does not affect interests that had indefeasibly vested before the adoption order was made. A person is the child of their parents, and parentage is set by the Children's Law Reform Act, not by whether the parents were married. A relative conceived before the death and born alive after it inherits as if born in the deceased's lifetime and surviving them.

When the property goes to the Crown

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. Under that Act, property vests in the Crown when a person dies intestate or partially intestate and there are no lawful heirs, and the Public Guardian and Trustee may take possession of it in the name of the Crown.

The Office of the Public Guardian and Trustee may also apply to be estate trustee of last resort. It may do so only if all of these apply:

• The deceased was an Ontario resident or owned Ontario real estate.
• There was no will, or the executor has died or become incapable.
• There are no known next-of-kin living in Ontario, or the next-of-kin are minors or mentally incapable adults.
• The estate meets the office's financial criteria after the funeral and debts are paid.

Those financial criteria are not published in figures, so you cannot tell from public information alone whether a particular estate would qualify.

Claims after the Crown takes the property

A person who proves a legal claim to escheated property to the satisfaction of the Public Guardian and Trustee is entitled to receive it. This covers a lawful heir who is located later.

Someone who is not a lawful heir but has a moral claim on the deceased has a different route. The Lieutenant Governor in Council may, by order, grant escheated intestate property to a person with a moral claim. This is a government order, not a decision of the Public Guardian and Trustee.

Common-law partners and next steps

A common-law spouse does not inherit under the Succession Law Reform Act when there is no will. A partner may still be a dependant and can apply to court for support from the estate if the deceased did not make adequate provision for them. Unmarried partners count for this purpose if they cohabited continuously for at least three years, or were in a relationship of some permanence and are the parents of a child. The application cannot be made after six months from the grant of letters probate or letters of administration, though the court may allow a late application for any part of the estate still undistributed.

• Gather what you know about the deceased's family, including half-siblings, adopted relatives and nieces and nephews.
• Find out whether the deceased lived in Ontario or owned Ontario real estate.
• Collect records of your relationship to the deceased if you think you may be an heir or a dependant.
• Speak with a lawyer promptly about a legal claim, a support application or a moral claim.

Frequently asked questions