Dying Without a Will & Intestacy

To die “intestate” means to die without leaving behind a valid will. This may be because the deceased never wrote a will, or the will left behind was invalid for some reason.

When a person dies without a will in Ontario, the distribution of the deceased’s assets is governed by Part II of the Succession Law Reform Act.

It is also possible for certain assets to be distributed according to the terms of a will while other assets are distributed according to the law of intestacy. For example, this may occur if the will does not gift all of the property owned by the deceased immediately before death. The assets not gifted in the will are distributed according to the laws of intestacy.

Part II of the Succession Law Reform Act sets out the rules for who inherits the deceased’s estate.

The legislation sets up a hierarchy of entitlement. If the first person in the hierarchy is not alive at the time the deceased died or does not exist, the next person in line inherits the estate.

At the top of the hierarchy is the deceased’s spouse and children. The surviving spouse is entitled to a greater percentage of the estate than any surviving children. If there are no surviving children, then the spouse inherits the entire estate.

Where there are children but no surviving spouse, then the children (or direct descendants such as grandchildren) of the deceased inherit the deceased’s property.

If the deceased died without a spouse or direct descendants, the deceased’s parents inherit the deceased’s property.

If the deceased died without a spouse, direct descendants, or surviving parents, then the deceased’s brothers and sisters inherit the deceased’s property.

If there is no spouse, direct descendants, surviving parents, or siblings, then the nephews and nieces (related by blood only) inherit the deceased’s property.

Finally, the nearest next-of-kin (or closest relations by blood) inherit the deceased’s property.

Where no next-of-kin exist, the deceased’s property “escheats” or is given to the Crown.

“Issue” is another word for “direct descendant.” This includes children, grandchildren, and great-grandchildren.

The Estates Act sets out who may apply to act as the executor (or “estate trustee”) of the deceased’s estate on intestacy. In all cases, the person who wishes to act as estate trustee must apply to the court for a certificate of appointment of estate trustee without a will.

The order of priority for acting as estate trustee is as follows:

• Spouse
• Children
• Grandchildren or other direct descendants
• Father and mother
• Siblings
• Closest next-of kin

In order for someone with a lower priority to act as estate trustee, the person(s) with a higher priority must formally give up (or “renounce”) their entitlement to act as estate trustee and consent to the other person acting.

Yes. The fact that someone died without a valid will does not affect anyone else’s legal rights. Examples of legal proceedings that can be brought against an estate include: a claim for payment of debt owed to the plaintiff by the deceased; a claim for dependant support brought under the Succession Law Reform Act; and a claim for the division of property pursuant to the Family Law Act.

A spouse is given special treatment under the Succession Law Reform Act. The spouse is entitled to take a “preferential share” of the deceased’s estate before the remaining assets are distributed. The value of the “preferential share” is currently $350,000.00 for the estate of persons who died on or after March 1, 2021.

If the deceased died leaving behind a spouse and children, the spouse takes a “preferential share” of the estate. After the payment of all debts of the estate (such as funeral costs and taxes), the remaining assets of the estate (if any) are divided between the spouse and children. Depending on the number of children, the spouse may be entitled to a greater percentage of the residue than the children.

If the deceased died without children, the spouse inherits the entire estate.

Under the Estates Administration Act, the deceased’s assets cannot be distributed on an intestacy until one year after the death of the deceased. However, the Trustee Act creates an exception where the executor has advertised for creditors and not received notice of any unpaid debts.

It is important to keep in mind that if the deceased’s assets are distributed on an intestacy before all the debts of the estate have been paid, the person receiving the distribution may have to pay part or all of the money back in order to pay the debt.

Yes. Giving up your right to act as estate trustee of an intestate estate (or “renouncing”) does not mean that you are also giving up your right to inherit from the estate. Being an estate trustee and being a beneficiary are two very different roles.

The job of executor (or “estate trustee”) is to administer the estate. This involves paying the debts and liabilities (including taxes) of the estate, settling all claims against the estate, and paying any money left over to the beneficiaries of the estate. The estate trustee does not have to be a beneficiary of the estate in order to take on that role.

The beneficiary does not have a “job” to do. Instead, a beneficiary has certain rights, which includes the right to inherit from the estate. The beneficiary can ask the estate trustee for information about the estate, including making sure that the estate trustee is doing his or her job properly. The beneficiary does not give up her rights as a beneficiary if she gives up her right to act as estate trustee.