What If a Child Dies Before the Parent Without a Will in Ontario?

A parent has died without a will, and one of their children, perhaps your sibling or your parent, died earlier. You may be wondering whether that child's family loses out. Under Ontario's intestacy rules, they generally do not, because a share can pass down a family line.

This article explains how the Succession Law Reform Act handles a child who died first, how a surviving spouse affects the result, and what happens when minors are involved. It is general information, and a lawyer can apply it to the particular facts.

The basic rule: the share passes down the branch

When there is no spouse, the estate goes equally to the issue in the nearest degree, and the share of an issue who died first goes to that person's own issue by the same rule. This is often called per stirpes, or taking by representation. Each child is a branch of the family, and if that child has died, the grandchildren on that branch divide that branch's share.

For example, imagine a parent with three children, one of whom died earlier leaving two children. The estate divides into three branches. The two living children each take one branch, and the two grandchildren split the third branch equally.

If a grandchild on a branch has also died first, the same rule applies again, and that grandchild's own issue take in turn.

When the child left no children

If the child who died first left no issue, there is nobody to take that branch's share. The estate then goes equally to the issue in the nearest degree who are alive, which usually means the deceased's other children.

If all the children died first without leaving issue, and there is no spouse, the estate goes equally to the parents, or wholly to a sole surviving parent. If there is no parent, it goes to surviving brothers and sisters, with a predeceased sibling's share going equally to that sibling's children.

How a surviving spouse changes the picture

A married spouse takes first. If the net value of the intestate estate is no more than the preferential share and the deceased leaves a spouse and issue, the spouse takes it all; if it is more, the spouse takes the preferential share first. The preferential share is $350,000 for deaths on or after March 1, 2021.

The residue is then divided. A spouse with one child takes one-half; a spouse with more than one child takes one-third, and the rest goes to the issue. When a child died first leaving issue alive at the death, the spouse's fraction is worked out as if that child were living.

An unmarried common-law partner is not a spouse for these rules, although a partner may still claim dependants' support from the estate.

Minors, administration and practical issues

Grandchildren who take a share may be young. The person applying for a certificate of appointment must serve every person entitled to share; for a minor, that means a parent or guardian and the Children's Lawyer. With no will, a child receives their share at 18, and a child's inheritance over $35,000 is paid into court and held by the Accountant of the Superior Court of Justice, or by a court-appointed guardian of property.

Who manages the estate is a separate question from who inherits. With no will, Ontario.ca says the spouse or common-law partner usually has the first right to apply, and otherwise a close adult relative such as a child, grandchild or sibling can apply, with the court choosing the most suitable. The application also needs renunciations from those with equal or greater priority who have not joined in it, and consent from persons who together hold a majority interest in the estate's assets.

• Jointly owned property that passes by survivorship falls outside the estate and does not follow these rules.
• If there are several joint administrators, one cannot sell or transfer real property without a judge's authority.
• Ontario.ca advises getting the certificate before signing an agreement of purchase and sale for estate real property.

What to do next

• Confirm whether any will exists before relying on the intestacy rules.
• Write down the full family tree: every child, whether alive or deceased, and every grandchild.
• Record the date each child died, since that decides whether the share passes down a branch.
• Check for a surviving married spouse, and for any separation before death.
• List which assets are jointly owned and which pension, RRSP or RRIF plans have a named beneficiary, since survivorship property falls outside the estate and a plan administrator is discharged by paying the person named in the latest designation.
• If you are served with court papers, read them carefully and speak with an Ontario estates lawyer before signing any consent or renunciation.

Frequently asked questions