What Happens If You Die Without a Will in Ontario
When someone dies without a will in Ontario, their estate is divided according to government rules instead of their personal wishes.
This situation, called dying "intestate," affects many Ontario families each year and can create challenges for loved ones.
If you die without a will in Ontario, the Succession Law Reform Act decides how your assets will be distributed among your family, following a strict legal formula that may not match your wishes.
The process becomes more complex because the court must appoint someone to manage your estate. Certain family members, like common-law spouses, may receive nothing at all.
Understanding intestacy laws in Ontario is important for protecting your family's future. This guide explains the legal process after an intestate death, how assets are divided, special situations for minor children and blended families, and practical steps to ensure your wishes are honoured.
Understanding Intestacy in Ontario
When someone dies without a will in Ontario, they die "intestate." Specific laws then control how their estate is divided.
The provincial government manages this process through established rules.
What Is Intestate and Intestacy?
A person dies intestate when they pass away without a valid will. Intestacy is the legal situation that follows.
Without a will, there are no written instructions for dividing property and assets. Family members cannot decide on their own how to split the estate.
The law treats all intestate estates the same way. It does not consider if the person intended to write a will or thought their family knew their wishes.
Key effects of intestacy include:
No chosen executor to manage the estate
Fixed rules determine who inherits
Court involvement is necessary
Distribution may not match the person's wishes
Succession Law Reform Act Overview
The Succession Law Reform Act (SLRA) is Ontario's main law for intestacy cases. It creates rules for dividing assets when someone dies without a will.
The SLRA sets a clear order of inheritance. It lists which family members inherit first and how much they receive.
The inheritance order under the SLRA is:
Spouse and children (if both exist)
Spouse only (if no children)
Children only (if no spouse)
Parents, siblings, and other relatives
The Act sets the preferential share for spouses at $350,000. The spouse receives this amount before any other division.
Common-law partners do not automatically inherit under the SLRA. They must make separate legal claims to receive any part of the estate.
How the Ontario Government Intervenes
The Ontario government intervenes in intestacy cases through the court system and administrative processes. The Ontario Superior Court of Justice appoints an estate trustee to replace the missing executor.
Family members must apply for a "Certificate of Appointment of Estate Trustee Without a Will." This legal document gives someone the authority to handle the deceased person's affairs.
The government also collects Estate Administration Tax on intestate estates. This tax applies whether or not there was a will.
Government involvement includes:
Court appointment of estate trustees
Enforcement of SLRA distribution rules
Tax collection and compliance
Protection of minor children's interests through the Office of the Children's Lawyer
The provincial system ensures all intestate estates follow the same legal framework. This creates consistency but removes personal choice from inheritance.
The Legal Process After Death Without a Will
When someone dies without a will in Ontario, the court must appoint an estate trustee to handle the deceased person's affairs.
This person must apply for approval and then take on duties to manage the estate.
Appointment of Estate Trustee Without a Will
The law requires someone to manage the estate when there is no will. Usually, a close family member takes on this role.
Who Can Apply:
Spouse of the deceased
Adult children
Parents or siblings
Other close relatives
The person who applies becomes the estate trustee without a will. They must be at least 18 years old and mentally capable.
Multiple people can apply together. If more than one person wants to be the estate trustee, the court decides who has the strongest claim.
The court looks at relationship to the deceased and ability to handle the job. Sometimes family members disagree about who should be appointed.
Applying for a Certificate of Appointment
The future estate trustee must file papers with the Ontario Superior Court of Justice. This document proves they have the right to handle the estate.
Required Documents:
Application form
Death certificate
List of all assets and debts
Consent forms from beneficiaries
Bond or insurance (sometimes required)
The application must list every asset the deceased owned, such as bank accounts, property, investments, and personal belongings.
All debts must also be listed, including credit cards, loans, mortgages, and unpaid bills.
The court charges fees based on the estate's value. These fees are called Estate Administration Tax.
The estate trustee must pay these costs before getting the certificate.
Role and Responsibilities of the Estate Trustee
The estate trustee without a will has many important duties. They must follow Ontario's intestacy laws when distributing assets.
Key Responsibilities:
Secure all assets and property
Pay all debts and taxes owed
Distribute remaining assets to rightful heirs
Keep detailed records of all transactions
File tax returns for the deceased and estate
The estate trustee must act fairly and honestly. They cannot favour one beneficiary over another.
Estate administration can take months or years to complete. The trustee must keep beneficiaries informed about progress.
They can hire lawyers, accountants, and other professionals to help. The estate pays for these services.
The trustee must get court approval for major decisions, such as selling real estate or making large payments.
Distribution of Assets Under Intestacy Rules
Ontario's Succession Law Reform Act sets strict rules for dividing assets when someone dies without a will.
The system uses a preferential share approach that prioritizes spouses, then children and other relatives.
Preferential Share and the Waterfall System
The preferential share gives the surviving spouse the first $350,000 from the estate. This amount increased from $200,000 for deaths after March 1, 2021.
After the spouse receives the preferential share, the remaining assets follow a waterfall pattern. The spouse's portion of what's left depends on how many children the deceased had.
Here's how the remaining assets get split:
One child: Spouse gets 50%, child gets 50%
Multiple children: Spouse gets 33.3%, children share 66.7% equally
For example, if an estate is worth $500,000 with a spouse and two children, the spouse receives $350,000 plus one-third of the remaining $150,000.
This gives the spouse $400,000 total. The two children split the remaining $100,000 equally.
Scenarios: Married Spouse, Children, and Next-of-Kin
Different family situations create different estate distribution outcomes under intestacy rules.
Spouse but no children: The spouse inherits everything. This applies only to legally married spouses.
Children but no spouse: All assets are divided equally among the children. If a child died before the parent, that child's share goes to their own children.
No spouse or children: The estate goes to parents first. If no parents are alive, it goes to siblings, then nieces and nephews, grandparents, and other relatives in order.
The law follows blood relationships and legal marriages strictly. Step-children, common-law partners, and close friends receive nothing under these rules.
What Happens If There Are No Next-of-Kin
If someone dies without any living relatives, their intestate estate becomes property of the Ontario government. This is called "escheat to the Crown."
The government holds these assets through the Office of the Public Guardian and Trustee. They pay any debts first, then keep the remaining money and property.
Sometimes distant relatives come forward years later claiming they should inherit. These people must prove their relationship with legal documents like birth certificates and marriage records.
The government does not search for unknown relatives. Family members have limited time to make claims before the assets become permanent government property.
Special Considerations for Family Members
Ontario's intestacy laws do not recognize all family relationships equally. Common-law spouses receive no automatic inheritance rights, and dependants may need to make separate claims for support.
Common-Law Spouses and Intestacy
Common-law spouses have no automatic right to inherit under Ontario's intestacy rules. This means they receive nothing from their partner's estate, even after many years together.
The Succession Law Reform Act only recognizes legally married spouses. A common-law partner must take legal action to claim any part of the estate.
Options for common-law spouses include:
Filing a dependant support claim under the Family Law Act
Claiming unjust enrichment if they contributed to the estate
Seeking constructive trust remedies
These legal processes are complex and expensive. Success is not guaranteed, and claims must be filed within specific time limits.
Support for Dependants
Dependants who are not adequately provided for under intestacy rules can apply for support. This includes spouses, children, parents, and others who relied on the deceased financially.
The court considers several factors when reviewing dependant support claims:
| Factor | Consideration |
|---|---|
| Financial need | Current income and expenses |
| Relationship | Duration and nature of dependency |
| Estate size | Available assets for distribution |
| Other beneficiaries | Impact on next-of-kin inheritance |
Applications must be filed within six months of the Certificate of Appointment. The court can order ongoing payments or lump-sum awards.
Estate Rights of Stepchildren and Other Relatives
Stepchildren who were not legally adopted have no inheritance rights under intestacy rules. They are not considered next-of-kin, even if the deceased raised them.
If there are no surviving spouse, children, parents, or siblings, the estate passes to more distant relatives. This follows a hierarchy: grandparents, aunts and uncles, then cousins.
Non-relatives who may have expected inheritance include:
Stepchildren from previous relationships
Close friends treated as family
Caregivers who provided long-term assistance
These individuals must pursue dependant support claims or other legal remedies. Without a will, personal relationships do not create inheritance rights.
Guardianship of Minor Children
When a person dies without a will in Ontario, a judge must decide who becomes the guardian of their minor children based on the "best interests of the child."
The court appoints temporary guardians who must then apply for permanent guardianship within 90 days.
How Guardians Are Appointed
The court always considers the best interests of the children when deciding on guardianship. Parents lose the chance to name a trusted guardian if they die without a will.
The appointment process follows these steps:
A judge makes the initial decision about temporary guardianship.
Temporary guardians have 90 days to apply for permanent guardianship.
The temporary appointment continues while the court reviews the application.
The court looks at several factors when choosing guardians. These include the ability to care for the children and existing relationships with potential guardians.
If both parents die and no close relatives are available, the court may select from extended family members. In some cases, a professional guardian is appointed.
Parents cannot influence this decision without a will. The court decides without input from the deceased parents about their preferences.
Court Processes and Potential Disputes
The guardianship process requires formal court applications. Family members must be notified during the application process.
Several people may seek guardianship of the same children. This can lead to disputes and legal battles between family members.
The court process becomes longer and more expensive when conflicts arise.
The court evaluates several factors during disputes:
The applicant's ability to care for the children
Financial stability and living arrangements
The children's own views and preferences
Existing relationships with potential guardians
Children cannot access their inheritance funds immediately during the court process. This delay can cause hardship if money is needed for their care or education.
The guardianship application requires detailed documentation and legal forms. Notice to all family members may trigger objections from relatives who want guardianship.
Challenges and Complications of Intestacy
When someone dies without a will in Ontario, families face legal hurdles and financial burdens that proper estate planning could prevent. These issues often lead to costly delays and damaged family relationships during an already difficult time.
Family Disputes and Delays
Family members often disagree about who should manage the estate when no executor is named. Multiple relatives may apply to become the estate trustee, creating court battles that can last months or years.
The Ontario Superior Court of Justice reviews all applications and chooses the most suitable person. This process takes much longer than simply naming an executor in a will.
Common sources of family conflict include:
Disagreements over asset distribution
Arguments about the estate trustee appointment
Disputes over property valuation
Conflicts between spouses and children over inheritances
Children from previous marriages may clash with current spouses over their share of the estate. The $350,000 preferential share rule often surprises families who expected different outcomes.
Estate administration becomes more complex when family members cannot agree. Legal fees increase as lawyers resolve these disputes in court.
Impact on Estate Value and Taxes
Intestacy creates significant financial costs that reduce what beneficiaries receive. Court applications, legal fees, and administrative expenses lower the estate's value.
The Certificate of Appointment process costs more than probating a will. Families pay court fees, legal fees, and may need multiple lawyers when disputes arise.
Additional costs of intestacy include:
Longer estate administration periods
Higher professional fees for trustees
Potential tax penalties from delayed filings
Costs of court-appointed guardians for minor children
Estate Administration Tax still applies to intestate estates. Poor estate planning can result in higher tax burdens overall.
Assets may lose value during lengthy court proceedings. Real estate markets can change, and investments may decline while families wait for resolution.
How to Avoid Dying Intestate in Ontario
The best way to avoid intestacy is through proper estate planning and making a valid will. These steps ensure your wishes are followed and protect your family from legal complications.
Benefits of Estate Planning
Estate planning gives you control over how your assets are distributed after death. Without a plan, Ontario's intestacy laws decide for you.
Control Over Asset Distribution You choose who receives your property, investments, and personal belongings. This is important for blended families or those wishing to leave gifts to friends or charities.
Reduced Family Conflict Clear instructions in your will help prevent disputes. When your wishes are written down, there is less room for arguments.
Faster Estate Settlement A valid will speeds up the probate process. Your estate trustee can distribute assets sooner, reducing stress for your loved ones.
Tax Benefits Proper estate planning can minimize taxes owed by your estate. This means more money goes to your beneficiaries.
Creating a Valid Will
A valid will must meet specific requirements under Ontario law. Following these rules ensures your document is legally enforceable.
Essential Requirements Your will must be written, signed by you, and witnessed by two people who are not beneficiaries. You must be at least 18 years old and mentally capable when signing.
Professional Help Consider hiring a lawyer to draft your will. They make sure all legal requirements are met and can suggest helpful strategies.
Regular Updates Review your will every few years or after major life changes. Marriage, divorce, births, deaths, and major purchases may require updates.
Conclusion
Dying without a will in Ontario creates stress and legal problems for your family. Common-law partners get nothing automatically. The government decides who gets your assets, which may not match your wishes. Court processes take longer and cost more money. Family fights can happen over who inherits what.
Creating a proper will solves these problems. A will lets you choose who gets your assets and protects your loved ones from legal battles. You can make sure everyone you care about is taken care of the way you want.
Contact B.I.G. Probate Law Ontario today for help with your estate planning. Our experienced team helps Ontario residents create wills that protect their families. Get started with a free consultation by email at Info@probatelaw-ontario.ca, call (289) 301-3338, visit probatelawgroup.ca, or book a free call.
Don't leave your family's future to government rules—proper planning gives your loved ones peace of mind.
Frequently Asked Questions
When someone dies without a will in Ontario, specific laws determine who inherits the estate and how the legal process works. The government's rules affect everything from bank accounts to who can manage the deceased person's affairs.
Who inherits if there is no will in Ontario?
The Succession Law Reform Act determines who inherits when there is no will. The law follows a strict order based on family relationships.
If the person was married with no children, the spouse inherits the entire estate. If they were married with children, the spouse gets the first $350,000 plus a share of any remaining amount.
When there are children but no spouse, the children split the estate equally. This includes situations where the person was single, divorced, or in a common-law relationship.
Common-law partners have no automatic inheritance rights under Ontario law. The estate passes to children, parents, or other blood relatives instead.
If there are no children or spouse, the estate goes to parents first. If the parents are deceased, siblings inherit equally.
The inheritance continues down the family line to nieces, nephews, and other relatives if no closer family members exist.
What is the legal process when someone dies without a will?
Someone must apply to the court to become the estate trustee without a will. This person handles the deceased person's affairs and distributes the assets.
The closest family member usually applies for this role. They must get consent from other beneficiaries who would inherit under the law.
The court requires the applicant to purchase an administration bond. This insurance protects beneficiaries if the estate trustee makes mistakes with the money.
The estate trustee must identify all assets and debts. They pay the deceased person's bills and taxes before distributing what remains.
The process takes longer than when there is a will. More paperwork and court approval are needed for each step.
What happens to a bank account when someone dies without a will in Ontario?
Banks freeze the deceased person's accounts when they receive a death certificate. No one can access the money until the court appoints an estate trustee.
Joint account holders can usually access funds in jointly held accounts. The money typically passes to the surviving account holder automatically.
The estate trustee must provide court documents to the bank before accessing single-name accounts. Banks require proof of the person's legal authority to handle the estate.
RRSP and TFSA accounts may have named beneficiaries. These accounts pass directly to the named person without going through the estate process.
Who has power of attorney after death if there is no will?
Power of attorney ends when someone dies. The person who held power of attorney has no legal authority over the deceased person's affairs after death.
Only a court-appointed estate trustee can handle the deceased person's business after death. This person must apply to the court for this authority.
The former power of attorney holder cannot access bank accounts or sell property after the person dies. They must wait for the court to appoint an estate trustee.
Family members cannot make decisions about the estate based on what they think the deceased person wanted. Only the appointed estate trustee has this authority.
Can a beneficiary withdraw money from a bank account after death?
Beneficiaries cannot withdraw money from the deceased person's bank accounts. Only the court-appointed estate trustee has this authority.
Banks require official court documents before allowing anyone to access accounts. A death certificate alone is not enough to access funds.
Joint account holders are different from beneficiaries. They can usually access funds in accounts they held jointly with the deceased person.
Beneficiaries must wait for the estate trustee to pay debts and taxes first. They receive their inheritance after these obligations are settled.
How long does probate take in Ontario without a will?
The probate process without a will usually takes 8 to 12 months or longer. This is slower than for estates with a valid will.
Getting court approval to become estate trustee adds extra time. The applicant must gather consents and purchase an administration bond.
Complex family situations can make the process longer. Disagreements about who should be estate trustee may delay court approval for months.
The size and complexity of the estate also affect timing. Larger estates with multiple properties or investments take longer to settle.
Court backlogs can add several months to the process. Some applications take longer during busy periods at the courthouse.