Do Parents Inherit When an Adult Child Dies Without a Will in Ontario?

Losing an adult child is devastating, and the practical questions can feel unbearable. If your child was unmarried, had no children and left no will, one of the first things you may ask is whether the law makes you their heir.

In Ontario, parents are in fact next in line in that situation. This article explains the rule, how the estate is shared between parents, what sits outside the estate, and the steps to take to be given authority to handle it.

When parents inherit

If a person dies without a will and leaves no spouse and no issue, the estate goes equally to the parents, or wholly to a sole surviving parent. If the deceased left a spouse but no issue, the spouse takes the whole intestate estate and parents receive nothing from it. If there are children or other issue and no spouse, they take equally in the nearest degree.

A child conceived before the death and born alive after it counts as issue. If your child may have left such a child, parents would not take under this rule.

Unmarried partners and separated spouses

Many adult children live with a partner without marrying. A common-law partner is not a spouse for the intestacy rules, because 'spouse' means married persons. That means a common-law partner does not inherit on intestacy, and parents may be the heirs.

That does not leave a partner without options. A common-law partner can qualify as a dependant and ask a court for support from the estate, whether or not there was a will. Such an application generally cannot be made more than six months after the grant of probate or letters of administration, although the court may allow a late application for any part of the estate remaining undistributed.

If your child was married but separated, spousal entitlements do not apply where the spouses were separated at death, for example after three years living apart because of marriage breakdown. Whether that applies depends on dates and documents, so confirm it with a lawyer.

What is not part of the estate

The intestacy rules only govern the property that forms the estate. Property a person owns at death vests in the personal representative, other than property passing by right of survivorship. A jointly held account or home that passes to the surviving owner is therefore outside the estate.

• Retirement plans: pension, retirement and profit-sharing arrangements, RRSPs and RRIFs can have a named beneficiary. The plan administrator is discharged on paying the person named in the latest designation, absent actual notice of a later one.
• Tax on registered plans: at death, an RRSP's value is deemed received as a benefit and reported on the final return. Parents are not 'qualifying survivors' for the rollover treatment, which covers a spouse, common-law partner, or financially dependent child or grandchild.
• Income earned in an RRSP after death is taxed in the hands of the designated beneficiaries or, if none, the estate.
• Other assets, such as insurance, depend on how they were set up. A lawyer or accountant can confirm the position.

Getting authority to deal with the estate

With no will, nobody is named as executor, so the question becomes who will take on that role. If no will exists, the spouse or common-law partner usually has the first right to apply; if that person does not, a close adult relative, including a parent, can apply, and the court may choose whichever relative it considers most suitable. The certificate is the document that gives authority to manage estate assets and pay debts, and should be obtained before anyone signs an agreement of purchase and sale for the deceased's real property.

The application is made on Form 74A with an affidavit of service and a draft certificate. Without a will, renunciations are required from every person entitled in priority or in equal right who has not joined in the application, and consents from those who together have a majority interest in the estate's assets. The applicant must serve every person entitled to share in the estate.

An administrator generally gives a bond to the court, which a judge may reduce or dispense with in special circumstances. If the other parent is the co-applicant, note that one of several joint personal representatives cannot sell or transfer real property without a judge's authority.

What to do next

• Search for a will carefully before assuming there is none.
• Find out whether your child had a spouse, a common-law partner, or any children.
• List accounts, property, debts and registered plans, and check how each is held and who is named.
• Keep funeral receipts and avoid distributing or selling anything yet.
• Agree with the other parent, if living, on who will apply.
• Speak with an Ontario estates lawyer about the application and any tax filings.

In limited cases, the Office of the Public Guardian and Trustee may apply to be estate trustee of last resort, for example where there is no will, no known next-of-kin living in Ontario or the next-of-kin are minors or mentally incapable adults, and the estate meets its financial criteria. A lawyer can tell you whether that is relevant.

Frequently asked questions