Dying without a will in Ontario presents challenges for family members and executors. Without a legally valid will, an estate is considered intestate, meaning Ontario’s Succession Law Reform Act determines how assets are distributed. Understanding the probate process and intestate succession laws can help families navigate the complexities of settling an estate without a will.
What Happens When Someone Dies Without a Will in Ontario?
When a person dies without a will, their estate follows intestate succession laws, which dictate how assets are distributed among surviving family members. The court appoints an estate administrator (often a spouse, child, or close relative) to manage the estate and oversee the distribution of assets.
Who Inherits Under Ontario’s Intestate Succession Laws?
1. Married Spouse (No Children)
If the deceased was married but had no children, the entire estate goes to the surviving spouse.
2. Married Spouse and Children
- The spouse receives the first $350,000 of the estate.
- The remainder is divided between the spouse and children:
- If one child, the spouse and child each receive 50% of the remainder.
- If multiple children, the spouse gets one-third, and the children split the remaining two-thirds equally.
3. No Spouse, But Children
The estate is divided equally among the deceased’s children. If a child has predeceased but has surviving descendants, those descendants inherit their parent’s share.
4. No Spouse or Children
If there are no direct descendants, the estate passes to the next of kin in this order:
- Parents (equally if both are alive)
- Siblings (if no surviving parents)
- Nieces and nephews (if no siblings)
- Extended relatives (e.g., cousins, aunts, uncles)
- If no relatives exist, the estate escheats to the Ontario government.
Learn more about Ontario's intestacy laws.
The Probate Process for an Intestate Estate
Step 1: Apply for Estate Administration
A family member or interested party must apply to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee Without a Will (formerly called Letters of Administration).
Step 2: Identify and Secure Estate Assets
The administrator must compile a detailed inventory of the deceased’s assets, including:
- Real estate
- Bank and investment accounts
- Vehicles and valuable personal property
- Outstanding debts and liabilities
Step 3: Pay Debts and Taxes
Before distributing assets, the administrator must:
- Settle all outstanding debts, mortgages, and liabilities.
- File the deceased’s final tax return and obtain a tax clearance certificate from the CRA.
Learn about estate taxation in Canada.
Step 4: Distribute the Estate
Once debts are settled, the administrator distributes the estate according to intestacy laws. Beneficiaries may need to sign release forms acknowledging receipt of their inheritance.
Challenges of Dying Without a Will
- Court-Appointed Administrator: The family may need to agree on an estate administrator, which can cause disputes.
- Delays in Probate: Without a will, the probate process often takes longer due to additional court approvals.
- Higher Legal Costs: Intestate estates may face increased legal fees, especially if conflicts arise.
- Lack of Control: The deceased has no say in who inherits assets, and family members may not receive what they expect.
How to Avoid Intestacy in Ontario
- Create a legally valid will to ensure your wishes are followed.
- Name an executor to manage your estate.
- Designate beneficiaries for assets like RRSPs, TFSAs, and life insurance.
- Seek legal advice to structure your estate efficiently and minimize probate fees.
Dying without a will in Ontario complicates estate distribution and can lead to delays and disputes among family members. By understanding intestate succession laws and the probate process, families can better navigate the challenges of settling an intestate estate. Planning ahead with a valid will ensures that assets are distributed according to your wishes and minimizes stress for your loved ones.
