How Long Before an Intestate Estate Can Be Paid Out in Ontario?

When someone dies without a will, heirs often want to know when they will receive their share. The honest answer is that no single date applies. Ontario law sets out several waiting periods and checkpoints, and the estate usually has to clear all of them.

This article explains those timing rules in plain language. They are minimum waiting periods, not promised payout dates. How long your estate takes will depend on its assets, its debts and who has to be notified, so a lawyer can confirm how the rules apply to your situation.

Nobody can pay out until an estate trustee is appointed

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 estate assets and pay estate debts. On a death, the deceased's property passes to and vests in the personal representative, who holds it as trustee for those entitled.

That means a relative who is simply holding the bank card or the house keys cannot divide the estate, even if every family member agrees. The first step on the timeline is the appointment, and how long it takes depends on the court application and the paperwork, such as consents, renunciations and a bond where one is required.

Funeral costs, debts and creditor notice come before heirs

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. A personal representative who gives the required notices to creditors and then distributes is not liable to a person whose claim they had no notice of at the time of distribution.

This is why a careful trustee does not rush. Distributing too early can leave the trustee exposed if a debt later appears. If the assets look too small to cover everything, the debts are paid proportionately, with no debt ranking ahead of another. A personal representative who expects a shortfall may call a meeting of creditors, and one is required if creditors holding 10% of filed claims ask for it in writing.

The six-month rules when a married spouse survives

The estate of a deceased spouse cannot be distributed within six months of death without the surviving spouse's written consent or a court order. This protects the spouse while they decide what to do.

During the same period, the surviving married spouse must choose between their entitlement under Part II of the Succession Law Reform Act and an equalization payment. The election must be filed in the office of the Estate Registrar for Ontario within six months after the death, and a spouse who does not file in time is deemed to have chosen the Succession Law Reform Act entitlement, unless the court orders otherwise.

Note that a common-law spouse does not inherit under the Succession Law Reform Act when there is no will. Separated spouses may also be treated differently, so how this applies to a separation is worth confirming with a lawyer.

Support claims, real estate and minors can change the timing

• Dependant support claims: a dependant, which can include an unmarried partner who meets the Family Law Act test, may apply to court for support if the deceased did not make adequate provision. The application cannot be made after six months from the grant of letters probate or letters of administration. The court may allow a late application for any part of the estate still undistributed.
• Distribution stops once served: after the personal representative is served with notice of a support application, they must not distribute until the court has disposed of it, unless everyone entitled to apply consents or the court orders otherwise.
• Real estate: real property not sold or conveyed within three years of death vests in the persons beneficially entitled under the intestacy, unless a caution has been registered.
• Minors: where a minor's share from an estate with no will is over $35,000, the money is paid into court and held by the Accountant of the Superior Court of Justice until the child turns 18. A share under $35,000 can be paid to the parent the child lives with, or to the person with lawful custody.

The $35,000 figure can change over time, so confirm the current amount before relying on it.

A realistic timeline and what to do next

Because the waiting periods overlap and run from different starting points, most estates will not be ready to pay out quickly. Some can take considerably longer, especially if there is a claim or a property to sell.

• Find out whether an estate trustee has been appointed and who it is.
• Ask whether creditor notices have gone out.
• Check whether a married spouse survives and whether they have consented in writing or filed an election.
• Note the date of the grant, because the support claim period runs from it.
• Ask about any minor beneficiaries and any real estate.
• Speak with a lawyer if someone is holding assets without appointment or a claim has been raised.

Frequently asked questions