Dying Without a Will in Ontario: Who Inherits Under Intestacy

When someone dies without a valid will, they are said to have died intestate. Ontario's Succession Law Reform Act then sets out who inherits, based on the family the person leaves behind.

This article explains how the Succession Law Reform Act (SLRA) divides an estate, who is left out, and who can apply to manage it. Details such as dates of death and family structure matter, so a lawyer can confirm how the rules apply to you.

Spouse and no children

Where a person dies without a will and leaves a spouse but no issue (children or other descendants), the spouse is entitled to the property absolutely.

Spouse and children

If the net value of the intestate property is not more than the preferential share, the spouse takes it absolutely. Net value means after charges, debts, funeral expenses and administration expenses. The preferential share is $200,000 for people who died before March 1, 2021, and $350,000 for people who died on or after March 1, 2021.

Above that amount, after the preferential share the spouse takes one-half of the residue if the deceased left one child, or one-third of the residue if more than one child. The issue share the rest.

If a child died before the deceased but left issue who are alive, the spouse's share is worked out as if that child were alive at the date of death. The child's issue take the child's share by representation.

No spouse or children

With no spouse or issue, the estate goes to the parents equally. If there are none, it goes to brothers and sisters equally, then to nephews and nieces equally without representation, then to next of kin of equal degree. If there are no relatives at all, it goes to the Crown under the Escheats Act, 2015.

Relatives of the half-blood inherit equally with relatives of the whole-blood in the same degree.

Who is left out, and what else may be available

• Separated spouses: a spouse's intestacy entitlements do not apply if the spouses were separated when the person died. One way to qualify is having lived separate and apart because of the breakdown of the marriage for three years.
• Common-law partners: a common-law spouse does not inherit under the SLRA intestacy rules. A common-law partner may still be able to seek support as a dependant, as described below.
• Married spouses may elect an equalization payment under the Family Law Act instead. The election must be filed within six months of the death.
• Dependants, including common-law partners: the court can order support from the estate where the deceased did not make adequate provision for a dependant, meaning a spouse, parent, child or sibling the deceased was supporting. The application must be made within six months after the grant of probate or administration. The court may allow it later as to any part of the estate not yet distributed.

Some assets pass outside the estate altogether, by joint ownership with survivorship or to a designated beneficiary, so intestacy rules may not govern them.

Who administers the estate, and what to do next

With no will, the court may grant administration to the married spouse, to the person the deceased was living with in a conjugal relationship outside marriage immediately before death, to the next of kin, or to both, as in its discretion seems best. So a common-law partner may be able to administer even though they do not inherit under intestacy. The court does not have to appoint the person otherwise entitled where there is insolvency or other special circumstances.

A bond is required when the deceased died without a will. It is generally double the value of the estate unless a judge orders otherwise. In special circumstances a judge may reduce the bond or dispense with it.

• Find out whether a will exists, including older or informal documents.
• List the family members: spouse, children, grandchildren, parents and siblings.
• Check whether the spouse was separated or was common-law.
• Note the date of death, since the preferential share depends on it.
• List assets, and identify which pass outside the estate.
• Speak with a lawyer about applying for administration and the bond.

Frequently asked questions