Who Inherits Without a Will in Ontario?

When a person dies without a valid Will, they are said to have died intestate. Ontario’s Succession Law Reform Act determines who inherits the estate and the order in which eligible family members are entitled to receive it.

The distribution is not based on informal family arrangements or assumptions about what the deceased may have wanted. The estate trustee must distribute the estate according to Ontario law.

Where there is no valid Will, an eligible person may also need to apply to the Ontario Superior Court of Justice for authority to administer the estate. Learn more about probate without a Will in Ontario.

Ontario’s intestacy rules generally apply to assets that form part of the deceased’s estate.

Not every asset owned or used by the deceased will necessarily form part of the estate.

Depending on the circumstances, certain assets may pass outside the estate, including:

• jointly owned property that passes to a surviving joint owner;
• life insurance proceeds payable to a named beneficiary;
• registered plans with a valid beneficiary designation; and
• other assets governed by a contract or right of survivorship.

Assets forming part of the estate are generally used first to address valid debts, funeral expenses, taxes, and estate-administration expenses. The remaining estate is then distributed to the persons entitled to inherit.

The ownership and any beneficiary designation associated with each asset should be reviewed before determining how the estate will be distributed.

If the deceased leaves a surviving legally married spouse and no children or other descendants, the married spouse will generally inherit the entire intestate estate.

However, the spouse’s entitlement may be affected by separation, a domestic contract, an equalization election, or other circumstances. A married spouse who was separated from the deceased may not be entitled to inherit under the intestacy rules where the statutory separation requirements are met.

Where the deceased leaves both a qualifying married spouse and children or other descendants, the spouse is entitled to receive a preferential share before the remaining estate is divided.

For deaths occurring on or after March 1, 2021, the preferential share is $350,000.

The surviving married spouse will generally receive the entire intestate estate.

The surviving married spouse first receives the $350,000 preferential share. The amount remaining after payment of the preferential share is divided as follows:

• If there is one child, the spouse receives one-half of the remaining amount and the child receives the other half.
• If there is more than one child, the spouse receives one-third of the remaining amount and the children share the remaining two-thirds.

Where a child died before the deceased but left children or other descendants, those descendants may inherit the share their parent would otherwise have received.

Suppose the net value of the intestate estate is $550,000.

The married spouse first receives the $350,000 preferential share. This leaves $200,000.

The remaining $200,000 is divided equally between the spouse and the child:

• the spouse receives an additional $100,000;
• the child receives $100,000.

The spouse’s total inheritance would therefore be $450,000.

This example is simplified and assumes that the full $550,000 forms part of the estate and that no other legal issues affect the distribution.

Suppose the net value of the intestate estate is $650,000.

The married spouse first receives the $350,000 preferential share. This leaves $300,000.

The remaining $300,000 is divided as follows:

• the spouse receives one-third, or $100,000;
• the two children share the remaining two-thirds, or $200,000.

Each child would receive $100,000, and the spouse’s total inheritance would be $450,000.

A common-law partner does not automatically inherit under Ontario’s intestacy provisions solely because of the common-law relationship. Ontario’s rules distinguish between legally married spouses and common-law partners for intestate inheritance.

This can be surprising where the couple lived together for many years, shared expenses, or raised a family together.

A common-law partner may have other possible legal rights or claims depending on the circumstances, but those issues are separate from an automatic entitlement under the intestacy rules.

The right to apply to become estate trustee is also different from the right to inherit. A common-law partner may, in some circumstances, have priority to apply to administer the estate even though they do not automatically inherit from it.

A separated married spouse does not automatically inherit in every situation.

Ontario law may exclude a separated spouse from inheriting where, at the time of death, the spouses were living separate and apart because of the breakdown of the marriage and one of the circumstances set out by law applies. These circumstances can include:

• living separate and apart for the required period immediately before death;
• entering into a valid separation agreement;
• obtaining a court order settling their affairs arising from the breakdown of the marriage; or
• obtaining a qualifying family arbitration award.

The timing of the separation and the documents in place should be carefully reviewed before determining whether a separated spouse is entitled to inherit.

If there is no surviving spouse entitled to inherit, the estate generally passes according to the following order.

If the deceased left children, the estate is generally divided equally among the children.

Where a child died before the deceased but left descendants, those descendants may receive the share that would have passed to their parent.

If there is no spouse and no child or other descendant, the estate passes equally to the deceased’s surviving parents.

If only one parent is living, that parent generally receives the entire estate.

If there is no spouse, descendant, or surviving parent, the estate is generally divided equally among the deceased’s surviving brothers and sisters.

If a sibling died before the deceased but left children, those children may share the amount their parent would have received.

If there is no surviving spouse, descendant, parent, brother, or sister, the estate is generally divided equally among the deceased’s nephews and nieces.

If none of the relatives listed above are living, the estate may pass to the deceased’s closest next of kin of equal degree.

If no person is legally entitled to inherit, the estate may ultimately become the property of the Crown.

Ontario’s statutory order of inheritance proceeds from a spouse and descendants to parents, siblings, nieces and nephews, more distant next of kin, and finally the Crown.

A stepchild does not automatically inherit from a stepparent’s intestate estate solely because of the stepchild relationship.

A stepchild who was legally adopted by the deceased is generally treated as the deceased’s child for intestacy purposes. An adoption generally establishes the legal parent-and-child relationship between the adoptive parent and adopted child.

Where a person wishes to provide for a stepchild who has not been legally adopted, this should generally be addressed through a properly prepared Will.

An adopted child is generally treated as the child of their adoptive parent for legal purposes and may inherit from the adoptive parent under the intestacy rules.

An adoption generally ends the legal parent-and-child relationship with the child’s previous parent, except in certain stepparent-adoption circumstances. The facts and adoption records should be reviewed where biological and adoptive family relationships may affect an estate.

If a child died before the deceased but left children of their own, the predeceased child’s descendants may inherit that branch of the family’s share.

For example, if the deceased had two children and one child died earlier leaving two children, the surviving child may receive one-half of the applicable children’s share. The two grandchildren may divide the other half that would have passed to their deceased parent.

The exact calculation depends on the surviving family members and the branches of descendants involved.

The estate trustee must distribute the estate according to Ontario law.

Adult beneficiaries may sometimes consider an agreement affecting how they receive or deal with their entitlements. However, an informal family understanding does not automatically replace the intestacy rules.

Any proposed arrangement should be reviewed carefully, particularly where:

• a beneficiary is under 18;
• an adult beneficiary may be incapable;
• creditors or tax obligations remain outstanding;
• not all affected beneficiaries agree; or
• the proposed arrangement may have tax, property, or other legal consequences.

The estate trustee should not make a different distribution without appropriate legal advice and, where relevant, advice from a qualified tax professional.

The estate should not be distributed immediately after death.

Before making distributions, the estate trustee may need to:

• obtain a Certificate of Appointment of Estate Trustee without a Will;
• identify and secure estate assets;
• determine the persons entitled to inherit;
• identify and pay valid debts and expenses;
• arrange for tax filings and other tax-related matters to be addressed;
• maintain appropriate estate records;
• address whether a Canada Revenue Agency clearance certificate should be obtained; and
• obtain beneficiary releases and receipts where appropriate.

Learn more about our estate administration services and the responsibilities involved in administering an Ontario estate.

Learn more about Estate Administration Tax in Ontario.

Nobari Law Professional Corporation provides practical legal assistance with probate applications and related estate matters where a person dies without a valid Will.

Our services may include:

• reviewing the deceased’s family and marital circumstances;
• reviewing who may be entitled to inherit under Ontario’s intestacy rules;
• explaining the statutory order of inheritance;
• preparing applications for a Certificate of Appointment of Estate Trustee without a Will;
• preparing required notices, consents, and renunciations;
• reviewing estate asset information and date-of-death values provided for the probate application;
• preparing materials to request that an estate administration bond be reduced or dispensed with, where appropriate;
• responding to court questions or requests for additional information;
• assisting with estate property and related real estate matters;
• preparing beneficiary releases and receipts, where appropriate; and
• providing legal guidance during the administration of the estate, where requested.

Every estate is different. Entitlement may depend on marital status, separation, adoption, family history, asset ownership, and other circumstances.

Determining who inherits without a Will can require a careful review of the deceased’s marital status, family history, descendants, adoption history, and estate assets.

Contact Nobari Law Professional Corporation to discuss your circumstances and learn how we may assist with a probate application or related Ontario estate matters.