No Will, No Spouse or Children: Who Inherits in Ontario?

When someone dies without a valid will, Ontario law decides who receives the estate. That is called an intestacy, and the rules are set out in the Succession Law Reform Act. If the person had no spouse and no children or other descendants, the order of inheritance runs through the wider family.

This article walks through that order, how closeness of kinship is counted, what happens if no relative can be found, and how a common-law partner may still have options. Your own situation may turn on details, so a lawyer can confirm how the rules apply.

The order of inheritance

On an intestacy, the people who can inherit are the deceased's spouse and closest next-of-kin. Where there is no spouse and no issue (descendants), the Succession Law Reform Act moves down a list, starting with the parents. Brothers and sisters inherit only if there is no spouse, issue or parent, but if a brother or sister died before the deceased, that sibling's share goes equally to their children, who are the deceased's nieces and nephews, even when other siblings are still alive.

Inheritance applies to the net estate. Funeral and burial expenses and debts are paid before the estate is distributed.

Siblings, nieces and nephews

If a brother or sister died before the deceased, that sibling's share goes equally to their children, who are the deceased's nieces and nephews.

The rule changes one step further down. When the estate passes to nieces and nephews because there are no siblings, it is shared without representation, so the children of a deceased niece or nephew do not take that person's share.

Half-blood relatives inherit equally with whole-blood relatives of the same degree, so half-siblings share equally with full siblings.

Counting degrees of kinship

If there is no spouse, issue, parent, brother, sister, nephew or niece, the estate goes equally to the next of kin of equal degree, without representation. Degrees are counted up from the deceased to the nearest common ancestor and then down to the relative.

• A relative conceived before the death and born alive after it inherits as if born in the deceased's lifetime and surviving them.
• A descendant conceived and born after the death inherits only if the conditions in s. 1.1(1) are met.
• Adopted children are treated as the child of the adoptive parent from the adoption order, and stop being the child of the former parent, with exceptions the law sets out.

When there are no lawful heirs

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.

This is not always final. A person who proves a legal claim to the 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 the property to a person with a moral claim on the deceased.

The Office of the Public Guardian and Trustee may apply to be estate trustee of last resort 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.

Common-law partners and what to do next

For the intestacy rules, a spouse means people who are married to each other. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will. A dependant may still apply to court for support from the estate if the deceased did not make adequate provision for them. Unmarried partners count as spouses 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.

A dependant's application cannot be made after six months from the grant of letters probate or letters of administration, but the court may allow an application at any time for any part of the estate still undistributed on the date of the application. A common-law partner may also have a priority right to apply for administration.

• Confirm whether a will exists, including a will that covers only part of the estate.
• List the living relatives, starting with parents, then siblings, then nieces and nephews.
• Note any half-siblings, adopted relatives or deceased siblings with children.
• Gather information on debts, funeral costs and assets.
• If you were a partner without marriage, get legal advice promptly about the six-month limit and whether a late application is possible.
• Get legal advice before distributing anything, because the estate trustee alone has legal authority to manage or distribute it.

Frequently asked questions