Short answer: If you die without a will in Ontario, the Succession Law Reform Act decides who inherits. A married spouse receives the first $350,000 and then shares the rest with any children. Common-law partners do not inherit automatically. Someone must also apply to court to be appointed estate trustee before the estate can be administered.
The rules that apply
Dying without a will is called dying intestate. Part II of Ontario's Succession Law Reform Act sets out who inherits. The rules are fixed: they do not consider what you would have wanted, who cared for you or who needs the money most.
Who inherits
| Survived by | How the estate is divided |
|---|---|
| Married spouse, no children | Everything to the spouse |
| Married spouse and one child | Spouse receives the first $350,000; the rest is split equally between spouse and child |
| Married spouse and two or more children | Spouse receives the first $350,000 and one third of the rest; the children share two thirds |
| Children, no spouse | Divided equally among the children, with a deceased child's share going to their children |
| No spouse or children | Parents, then siblings, then nieces and nephews, then more distant relatives |
| No relatives | The estate goes to the Province of Ontario |
The $350,000 preferential share applies to deaths on or after March 1, 2021. A married spouse can instead choose an equalization of net family property under the Family Law Act, but must make that election within six months of the death.
Common-law partners
Common-law partners, however long the relationship, do not inherit under Ontario's intestacy rules. A partner who was being supported, or should have been, can apply for dependant's support from the estate under Part V of the Succession Law Reform Act, generally within six months of an estate trustee being appointed. Jointly owned property with a right of survivorship and accounts or policies with a named beneficiary pass outside the estate.
Who manages the estate
Without a will there is no named executor. A family member, usually the spouse or an adult child, applies to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee Without a Will. The court may require a bond, especially where minor children are beneficiaries. Ontario also has a simpler small estate certificate for estates worth $150,000 or less.
Estate administration tax is charged when the certificate is issued, at 1.5 percent of the estate value over $50,000.
Minor children
A child's share is not paid to them directly. It is paid into court, or managed by a guardian of property, until the child turns 18, when they receive it outright. A will lets you choose a trustee, delay payment to a more mature age and name a custodian for your children.
Avoiding the problem
A will lets you choose who inherits, who manages the estate, who cares for your children and when your children receive money. Pair it with powers of attorney so someone can act for you during your lifetime if you cannot.
Frequently asked questions
Who inherits if there is no will in Ontario?
A married spouse first, then children, then parents, siblings and more distant relatives, under Part II of the Succession Law Reform Act.
Does a common-law partner inherit without a will in Ontario?
No. A common-law partner can apply for dependant's support but does not inherit under the intestacy rules.
What is the spousal preferential share in Ontario?
The first $350,000 of an intestate estate goes to the married spouse, for deaths on or after March 1, 2021.
Who is the executor if there is no will?
No one automatically. A family member applies to court to be appointed estate trustee without a will.
Is there probate if there is no will in Ontario?
Yes. The court appointment and estate administration tax apply whether or not there is a will, unless the assets pass outside the estate.
Talk to our team
This guide is general information, not legal advice. For advice on your situation, see our wills and estates lawyer in Toronto page. To book a paid consultation (30 minutes, $150 plus HST, paid when you book), book online or call (647) 271-1646. The phone is answered 24 hours a day, 7 days a week, and office meetings are by appointment. Civitas Law is a team of legal professionals under the leadership of lawyer Nasibeh Mehrpouyan, serving clients in English, French, Farsi, Russian and Serbian.