Dying Without a Will: Who Gets the House in Ontario?

When someone dies without a will, families often ask the same thing first: who gets the house? The answer depends on who survived the person, whether a spouse was still living with them, and what is owed on the home.

This article explains the main Ontario rules in plain language. Every family is different, so treat it as a guide to the questions to ask, not a final answer on your situation.

Who is in charge of the house first

Before anyone inherits, someone has to manage the estate. In Ontario, only an estate trustee has legal authority to manage or distribute an estate, which includes selling the home or clearing it out. A deceased person's property, including the home and its contents, vests in the personal representative, who holds it as trustee.

That means relatives, even close ones, should not list the house, give away furniture or move in on their own.

How the home passes to a spouse and children

On intestacy, a surviving spouse with no issue takes the whole estate, including the home. Where there are issue, the spouse takes a preferential share first.

How the rest of the estate is divided among the spouse, children or other relatives, and what happens if there is no spouse at all, depends on the family tree. How this applies depends on your situation, so it is worth confirming with a lawyer.

When a spouse may not qualify

A spouse who was separated from the deceased at death has no intestacy entitlement. Separated means living apart because of marriage breakdown for three years, or under a separation agreement, court order or family arbitration award, and still living apart at death.

Unmarried partners are treated differently for some purposes. For the matrimonial home and equalization parts of the Family Law Act, spouse means people who are married to each other, or who entered a void or voidable marriage in good faith. Even so, a dependant, which can include some unmarried cohabitants, may ask the court for support, including possession or use of the home for a period the court considers appropriate. Whether someone qualifies depends on the facts.

Mortgage, debts and timing

• The beneficiary who receives the home takes it subject to the mortgage unless the will or another document shows a contrary intention.
• The residuary estate generally pays the deceased's debts rateably according to value, subject to a contrary intention in a will and to the Succession Law Reform Act.
• Where there is no will, no distribution may be made until one year after the death, subject to s. 53 of the Trustee Act.
• A spouse living in the matrimonial home with no interest in it may stay in possession against the estate, rent free, for sixty days after the death.
• Once the personal representative is served with notice of a dependant's support application, they must not distribute until the court disposes of it, unless all persons entitled to apply consent or the court orders otherwise.

What to do next

• Locate any will, even an old one, before assuming there is none.
• List the family members who survived the person, including any spouse and children.
• Find the mortgage, insurance and property documents for the home.
• Tell the home insurer in writing if the house is empty, and read your policy wording.
• Speak with a lawyer about who should apply to be estate trustee.

A house left vacant after a death can be a change that is material to the risk, and it may void coverage for the part affected unless the insurer is promptly notified in writing.

Frequently asked questions