Who Inherits the House When There Is No Will in Ontario?

When someone dies without a will, the family often assumes the house simply goes to whoever lived there or to the oldest child. In Ontario, it does not work that way. A set of legal rules decides who inherits, and a separate step decides who has the authority to deal with the home.

This article explains, in general terms, how the house is treated when there is no will, how a spouse's share works, who can apply to administer the estate, and what to sort out before anyone lists or sells the property. Every family's facts are different, so use it as a map, not a final answer.

First question: how was the house owned?

Before the intestacy rules even matter, look at the title. Ontario co-owners hold property either as joint tenants or as tenants in common. When a joint tenant dies, the surviving co-owners inherit the share. When a tenant in common dies, that share becomes part of their estate.

This means that if a couple owned the home as joint tenants, the survivor usually takes it outright, and the no-will rules never decide who gets it. If the deceased owned the home alone, or as a tenant in common, the share falls into the estate and the intestacy rules apply.

• Owned alone: the home is part of the estate.
• Owned jointly with right of survivorship: the surviving co-owner inherits the share.
• Owned as tenants in common: the deceased's share is part of the estate.

A copy of the deed or a title search will show how ownership is registered. If it is unclear, ask a lawyer to confirm before anyone assumes the answer.

How the intestacy rules divide the estate

If the house is part of the estate, it is divided with everything else the person owned, after debts and taxes. The rules depend mostly on whether there is a surviving spouse and whether there are children.

The preferential share is $350,000 for deaths on or after March 1, 2021. It was $200,000 before that.

In practice, the spouse takes the preferential share first, and how the rest is split depends on how many children there are, with the children sharing what is left.

The rules for situations with no surviving spouse, or involving more distant relatives, are not covered here. They depend on the family tree, and a lawyer can confirm who is entitled.

Common-law partners are treated differently

This surprises many families. Under Ontario's intestacy rules, a common-law spouse does not inherit. A partner who lived in the home for decades may have no automatic share of it under those rules.

That does not necessarily mean the partner has no other options. How this applies depends on the situation, so it is worth confirming with a lawyer. Get legal advice early if you are in this position.

Who can apply to administer the estate

Inheriting and administering are different things. The person who deals with the home, the bank accounts and the paperwork is the estate trustee. Their duties are to wind up the deceased's affairs, pay taxes and debts, collect assets and distribute the rest to those entitled.

With no will, the spouse or common-law partner usually has first right to apply to administer the estate. If there is none, a close adult relative can apply: a child, parent, grandchild, sibling, nephew or niece. The court may appoint the relative it considers most appropriate.

Note that the right to apply to administer is not the same as the right to inherit. A common-law partner may be first in line to apply even though they do not inherit under the intestacy rules.

If no eligible person can administer the estate, the Office of the Public Guardian and Trustee may apply to act, including where the deceased owned Ontario real estate. Where relatives disagree about who should act, that is a good time to speak with a lawyer.

Probate, tax and timing for the house

Probate is normally required if the deceased owned real property that does not pass to another person by right of survivorship. Estates valued at up to $150,000 can use a Small Estate Certificate, and larger estates use a Certificate of Appointment of Estate Trustee. An Estate Information Return must be filed within 180 calendar days after the certificate is received.

If the house must be sold, a certificate should be obtained before anyone signs an Agreement of Purchase and Sale. Listing or accepting an offer too early can cause problems with the buyer's lawyer.

The estate pays Estate Administration Tax. For certificates applied for on or after January 1, 2020, it is $0 per $1,000 on the first $50,000 and $15 per $1,000 on the rest. Ontario real estate counts at appraised date-of-death value, minus encumbrances such as mortgages or liens.

Income tax also matters. On death, the person is treated as having sold their property just before death, and any gain or loss goes on the final return. A home that qualifies as a principal residence must still be designated on the final return using Schedule 3 and Form T1255. A transfer to a surviving spouse or common-law partner who is resident in Canada may produce no gain or loss on the final return. The final return is due April 30 of the following year if death occurs January 1 to October 31, or six months after death if it occurs November 1 to December 31. An accountant can confirm how this applies.

What to do next

• Get a copy of the deed or a title search to see how the home was owned.
• Look for any will, even an old one, before assuming there is none.
• Work out who is the surviving spouse and who the children are.
• Decide who will apply to be estate trustee, and talk to the other relatives early.
• If the house must be sold, a certificate should be obtained before anyone signs an Agreement of Purchase and Sale.
• Keep the home insured, heated and secure while the estate is sorted out.
• Speak with a lawyer if there is a common-law partner, a blended family, or any disagreement.

A lawyer can confirm who inherits on your family's facts, handle the application and explain the tax steps.

Frequently asked questions