Intestate in Ontario: What It Means and What Happens Next

Someone has died, and a bank, relative or lawyer has used the word intestate. It sounds technical, but the idea is simple, and knowing it early helps you avoid mistakes in the first weeks.

This article explains what intestate means in Ontario, who the law says inherits, who can take charge of the estate, and what you can sensibly do first. It is general information, not advice on your own situation.

What intestate means

A person dies intestate when they die without a valid will. In Ontario, the Succession Law Reform Act then sets out how the estate is distributed. In other words, the law writes a default plan for the person.

A related situation is a partial intestacy, where there is a will but it does not deal with everything. The part the will does not cover is distributed under the intestacy rules.

Who inherits when there is no will

On an intestacy, the people who can inherit are the deceased's spouse and closest next-of-kin. That surprises many families, because the law does not ask what the person would have wanted. Where there is no spouse, the estate is divided equally among the deceased's descendants, and if a child died earlier, that child's share passes to their own children. If there are no descendants either, the estate goes to the parents equally, or to the surviving parent. If there is no parent, it goes to the brothers and sisters equally, and a sibling who died earlier has their share go equally to their children, the deceased's nieces and nephews. If there are no brothers or sisters, the nieces and nephews share equally, and the children of a niece or nephew who died earlier do not take that person's share. After that, the estate goes equally to the next of kin of equal degree, and if there is no one at all, it becomes the property of the Crown.

• If there is a spouse and no children or other descendants, the spouse takes the whole estate.
• If there is a spouse and descendants, and the estate's net value is no more than the preferential share, the spouse takes the whole estate. If the net value is more, the spouse first takes the preferential share. Net value is the value of the property after paying the charges on it and the debts, funeral expenses and administration expenses.
• For deaths on or after March 1, 2021, the preferential share is $350,000.
• For deaths before March 1, 2021, the preferential share is $200,000.
• Whatever remains is divided between the spouse and the descendants under set fractions, covered in our step-by-step article on the rules.

A common-law spouse does not inherit under the Succession Law Reform Act when there is no will. Spouses who were separated at the time of death can also lose their intestacy entitlement if they meet the legal test for separation, which is set out in the Act. That rule applies only if the qualifying separation event happened on or after January 1, 2022. A common-law partner may still be able to ask a court for support from the estate as a dependant.

Who is in charge of the estate

The estate trustee is the only person with legal authority to manage or distribute an estate, and the court's certificate gives that authority to manage assets and pay debts. Without a will, no one is named, so someone must apply to be appointed.

Under the Estates Act, administration may be granted to the person the deceased was married to immediately before death, or a person living with them in a conjugal relationship outside marriage, or to the next of kin, or to both. In practice the spouse or common-law partner usually has the first right to apply, and a close adult relative such as a child, parent, grandchild, sibling or niece or nephew can apply after them.

The court is not obliged to appoint the person otherwise entitled. Where it is necessary or convenient, for example because of insolvency or other special circumstances, it may appoint anyone it thinks fit.

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; and the estate meets its financial criteria after the funeral and debts are paid.

Debts, taxes and what the trustee does

Funeral and burial expenses and debts are paid before the estate is distributed, and the estate trustee is responsible for paying taxes, bills and other debts. Heirs receive what is left, not the gross value of everything the person owned.

Registered savings can matter a great deal. For an unmatured RRSP, the Canada Revenue Agency treats the deceased as having received its fair market value immediately before death, and that amount is included in income on the final return. If no beneficiary is named, the plan is paid to the estate and divided under the intestacy rules. Where a spouse, common-law partner, or financially dependent child or grandchild inherits, the legal representative and that survivor can elect to treat some or all of the RRSP as paid to the survivor as a refund of premiums, which reduces the amount taxed on the final return. An accountant can help you understand the final return.

What to do first

• Locate any will. Search the home, safe deposit box and with the person's lawyer before assuming there is none.
• List family members who may be entitled, including children, grandchildren, parents and siblings, and note any who are minors.
• Gather death certificate details, a list of assets and debts, and recent statements.
• Keep funeral receipts and avoid distributing or selling anything, because only an appointed estate trustee has authority over the estate.
• Talk with the family about who will apply to be estate trustee, and speak with a lawyer early if relatives disagree or the estate is complicated.

If there is a separated spouse or an adopted child, special rules can apply to who counts as an heir. A child's parentage is set by the Children's Law Reform Act, not by whether the parents were married. How this applies depends on your situation, so it is worth confirming with a lawyer before anyone makes promises.

Frequently asked questions