What If Half-Siblings or Siblings Inherit From an Intestate Estate?

If your brother or sister died single, without children and without a will, you may wonder who inherits. The answer comes from a fixed order set out in Ontario's Succession Law Reform Act, and siblings sit fairly far down that order.

This article walks through that order, how shares are split between full and half-siblings, what happens when a sibling died earlier, and what the family needs to do to get the estate administered.

Where siblings fall in the order

The law looks for the closest living relatives in a set order. A spouse comes first. If the deceased left a spouse but no issue, the spouse takes the whole estate. With no spouse, the estate goes equally to the issue in the nearest degree. If there is no spouse or issue, it goes to the parents.

Siblings therefore inherit only when there is no spouse, no issue and no parent alive. A parent who is alive takes before any sibling does.

How shares are divided among siblings

Surviving brothers and sisters take equally. If a sibling died before the deceased, that sibling's share goes equally to that sibling's children.

For example, suppose the deceased had three siblings and one of them died earlier leaving two children. The two living siblings each take one-third, and the third share is split equally between the two nieces or nephews, so each receives one-sixth. The arithmetic follows directly from the equal-shares rule.

Half-siblings are counted too. Kindred of the half-blood inherit equally with those of the whole blood in the same degree. A half-sister who shares one parent with the deceased therefore takes the same size of share as a full sister. Degrees of kindred are counted up to the nearest common ancestor and down to the relative.

When nieces, nephews and more distant relatives inherit

If there is no spouse, issue, parent or sibling, the estate goes equally to nephews and nieces, without representation. That means a niece or nephew's own children do not take in their place if the niece or nephew has died.

If there are no nephews or nieces either, the estate goes to the next of kin of equal degree of consanguinity, equally and without representation. If no one is entitled, the property becomes the property of the Crown and the Escheats Act, 2015 applies.

• Sibling's children take by representation only where the sibling died first.
• Nieces and nephews take in their own right only when no sibling survives, and their children cannot step in.
• Genealogy matters: finding every relative, including half-siblings you may not know well, is part of the process.

Common traps for single people's estates

• A common-law partner is not a spouse for intestacy. The partner does not inherit under these rules, though they may claim dependants' support from the estate.
• A child conceived before the deceased's death and born alive afterward counts as issue. Such a child would come ahead of siblings.
• A sibling can also be a dependant. A court may order support from an estate where the deceased did not make adequate provision for a dependant, and 'dependant' includes a sibling to whom the deceased was providing support immediately before death.
• Property passing by right of survivorship, such as a jointly held account or home, is outside the estate. Beneficiary designations on plans such as RRSPs are also separate from the intestacy rules.

What to do next

Someone usually needs to apply to the court for authority to deal with the estate. Where there is no will, a close adult relative, including a sibling, nephew or niece, can apply if the spouse or common-law partner does not, and the court may choose the relative it considers most suitable. A certificate of appointment should be obtained before anyone signs an agreement to sell the deceased's real property.

On a no-will application, renunciations are required from every person entitled in priority or in equal right who has not joined in the application, and consents are required from persons entitled to share who together hold a majority interest in the estate's assets. Everyone entitled to share must be served.

• Confirm there is no will by searching the home, safe deposit box and with the family's lawyer.
• List all relatives: parents, spouse, children, siblings, half-siblings, nieces and nephews.
• Note which siblings died earlier, and who their children are.
• List assets and debts, and check which assets pass outside the estate.
• Speak with an Ontario estates lawyer before anyone signs a sale or distributes anything.

Frequently asked questions