Dying without a valid will is called dying intestate. Ontario does not leave the estate to the government in most cases, but it does apply a fixed formula that ignores what the person may have wanted, leaves common-law partners out entirely, and requires someone to go to court before anything can be done.
Who inherits
Part II of Ontario's Succession Law Reform Act sets out the order. "Spouse" here means a married spouse.
| Who survives the deceased | Who inherits |
|---|---|
| Spouse, no children | The spouse takes everything |
| Spouse and one child | The spouse takes the first $350,000, then the balance is split equally between the spouse and the child |
| Spouse and two or more children | The spouse takes the first $350,000, then one-third of the balance; the children share the remaining two-thirds equally |
| Children, no spouse | The children share equally; a deceased child's share passes to that child's own children |
| No spouse, no children | Parents; if none, brothers and sisters; if none, nieces and nephews; if none, the nearest next of kin |
| No relatives at all | The estate goes to the Ontario government |
The $350,000 figure is the preferential share, and it applies to deaths on or after March 1, 2021. Before that date it was $200,000.
Common-law partners and separated spouses
A common-law partner has no right to inherit on intestacy in Ontario, regardless of how long the couple lived together or whether they had children. A partner who depended on the deceased financially can apply to the court for support from the estate, but that is a claim to be argued, not a share to be received, and it must be started within a limited time.
Since January 1, 2022, a married spouse who was separated from the deceased at the time of death, in the circumstances the Act describes, is also treated as not being a spouse for these purposes. A separation that was never formalised can still create uncertainty that only a will removes.
Who administers the estate
With no will there is no named estate trustee. Someone must apply to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee without a Will. Priority goes to the spouse, then to the next of kin, and the applicant generally must be resident in Ontario. Because the court has no will to rely on, it generally requires the applicant to post an administration bond from a surety, unless it agrees to dispense with it on application. Nothing can be sold, and no account can be closed, until the certificate is issued. How the probate application works.
Children under 18
A minor's share cannot be paid to the child or held informally by a parent. It is normally paid into court and managed by the Accountant of the Superior Court of Justice until the child turns 18, at which point the whole amount is paid out regardless of whether an 18-year-old is ready for it. The intestacy rules also say nothing about who should raise the children. A will deals with both: it names a guardian and creates a trust with a trustee and an age you choose.
If you are reading this for yourself
- If you are in a common-law relationship, your partner inherits nothing unless you make a will.
- If you have children with a former partner and a new spouse, the formula may leave your children with much less than you expect.
- If you have young children, only a will lets you name a guardian and control when they receive money.
- If you want your estate to follow Islamic inheritance principles, the intestacy formula will not do that. An Islamic will can.
Wills and powers of attorney: what we prepare and how the process works.
Common questions
Ontario's Succession Law Reform Act sets the order. A married spouse with no children takes everything. A married spouse with children takes the first $350,000 and shares the rest with the children. If there is no spouse, the children share equally; then parents; then brothers and sisters; then nieces and nephews; then other next of kin; and finally the Ontario government.
No. The intestacy rules apply only to married spouses. A common-law partner receives nothing automatically, however long the relationship lasted. A partner who was financially dependent on the deceased may be able to apply to the court for support from the estate, which is a separate and time-limited claim.
The amount a married spouse receives before the children share anything. For deaths on or after March 1, 2021 it is $350,000. If the estate is worth less than that, the spouse takes it all. If it is worth more, the spouse takes $350,000 plus half of the balance if there is one child, or one-third of the balance if there are two or more children.
Nobody automatically. Someone, usually the spouse or the nearest adult relative, applies to the court for a Certificate of Appointment of Estate Trustee without a Will. The court generally requires that person to post a bond unless it agrees to dispense with it.
A minor's share cannot be paid to the child or to a parent. It is normally paid into court to the Accountant of the Superior Court of Justice and held until the child turns 18, unless a court orders otherwise. A will can avoid this by creating a trust and naming a trustee.