[Kyra Kim] What Happens if you Die Without a Will in Ontario?

Many people believe that if they pass away without a will, their spouse or children will simply inherit everything automatically. Unfortunately, that is not always the case. If you die without a valid will in Ontario, you are said to have died “intestate.” Instead of your wishes determining who inherits your estate, Ontario law decides who receives your assets and who will administer your estate.

Here are some of the key things you should know.

Who Inherits Your Estate?

When someone dies without a will, Ontario’s Succession Law Reform Act R.S.O. 1990, c. S.26 (the “SLRA”) sets out who is entitled to inherit the estate. These provisions are commonly referred to as Ontario’s intestacy rules.

• Married Spouse With No Children: If you are legally married and have no children, your spouse will generally inherit your entire estate.

• Married Spouse and Children: Many people assume their spouse will automatically receive everything. That is not necessarily true. Your spouse first receives the preferential share (currently at $350,000.00), and the remainder is divided between your spouse and your children under Ontario’s intestacy rules.

For example, if there is one child, the surviving spouse and the child each receive one-half of the remaining balance after preferential shares. If there are two or more children, the surviving spouse receives one-third of the remaining balance after preferential shares, and the children share the remaining two-thirds equally.

Under section 45(1) of the SLRA, where a person dies intestate, and the estate’s net value does not exceed the preferential share to a spouse, the surviving spouse is entitled to the entire estate.

• Unmarried With Children: If you do not have a legally married spouse, your estate will generally be distributed to your children equally. If your child has predeceased you leaving descendants, that child’s share will be divided equally among their children. If your child has predeceased you leaving no children, their share will be divided equally among your surviving children.

• Unmarried and No Children: If you are not married and have no children, your estate does not automatically go to a partner or distant relative. Your estate passes to your closest surviving relatives under the statutory order of priority, starting with parents, then siblings, then nieces and nephews, and then others next of kin (distant relatives). If no eligible relatives survive, the estate escheats to the Crown.

What About Common-Law Spouses?

This is one of the biggest misconceptions in estate planning. In Ontario, common-law partners are not automatically entitled to inherit under Ontario’s intestacy rules, regardless of how long they have lived together. Although a common-law spouse may have other legal rights or claims against the estate in certain circumstances, they are not considered an automatic beneficiary when there is no will. If you are in a common-law relationship, having a properly drafted will is especially important to ensure your partner is provided for according to your wishes.

What Happens in Blended Families?

Blended families often face additional challenges when there is no will. For example, you may wish to:

• leave everything to your current spouse;
• ensure children from a previous relationship receive an inheritance; or
• balance the interests of your spouse and children fairly.

Without a will, you lose the ability to make those decisions yourself. Instead, the SLRA determines who inherits your estate and in what shares. This outcome may not reflect your wishes or your family’s needs and can cause delays, uncertainty, disputes, or even litigation among surviving family members.

Who Administers the Estate?

A will allows you to choose your Estate Trustee (formerly known as an executor), the person responsible for administering your estate, paying debts, and distributing assets. If there is no will, no one automatically has the legal authority to act. Instead, an eligible person must apply to the Ontario court for appointment as Estate Trustee Without a Will, before administering the estate. This process can take time, involve additional legal costs, and may result in disagreements among family members over who should be appointed.

Why Having a Will Matters 

A properly prepared will allows you to decide exactly who will receive your assets, while ensuring you can provide for your spouse, children, or other loved ones according to your wishes. It also gives you the power to choose a trusted individual to administer your estate, which minimizes uncertainty, helps prevent potential family disputes, and ultimately makes the entire estate administration process much smoother and more efficient.

Rather than leaving these important decisions to Ontario law, a well-drafted estate plan ensures that your wishes, not the default rules, will guide the administration of your estate. Realty Care Law LLP can assist individuals and families with wills and estate planning tailored to their personal and family circumstances.