Intestate Succession (What happens to my estate if I die without a will?)

Posted on 25 November 2020 Back to News

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Updated November 2022 – What happens when a person dies without a valid Will?

When this occurs, the deceased is deemed to have died ‘intestate,’ and Ontario’s Succession Law Reform Act (“SLRA”) provides default rules for the distribution of their Estate. In short, the law determines what will happen to their belongings, regardless of what their intentions might have been while they were living. Furthermore, the deceased’s loved ones may be left in a state of uncertainty over who will be responsible for the administration of the Estate, and this can result in increased costs and unnecessary conflict.

To get a better idea of how an Estate Administration would unfold for someone who died without a Will, let’s look at a number of potential scenarios contemplated by the SLRA:

What Happens if… Then…
  • A person dies leaving a spouse with no issue (descendants)?
Their spouse will be entitled to recieve the deceased’s property absolutely (SLRA, s. 44)
  • A person dies leaving a spouse and issue?
Their spouse will inherit a ‘preferential share’ of the Estate, currently set at $350,000.* The spouse will then share the balance of the Estate, assuming there is anything remaining, with the deceased’s issue in equal parts (SLRA, s. 45)
  • A person dies without a spouse or issue?
The deceased’s estate will be divided in priority amongst their next of kin as follows:

  1. the parent(s) of the deceased in equal shares;
  2. the sibling(s) of the deceased in equal shares;
  3. the nephew(s) and niece(s) of the deceased in equal shares;
  4. the next of kin of equal degree of consanguinity

If the deceased person has no next of kin, their estate will become the property of the Crown (SLRA, s. 47)

*Please note that the ‘preferential share’ of $350,000 is the entitlement of a legally married spouse. In Ontario, the SLRA’s definition of ‘spouse’ does NOT extend to common-law spouses. If you have a common-law spouse, or if you are otherwise not content with the rules for intestate succession outlined above, making a Will allows you to take control of your affairs and ensures that your Estate is distributed in accordance with your wishes. Contact any one of our Wills & Estates lawyers for assistance.

*The content of this article is intended for general information purposes only and does not constitute legal advice or an opinion of any kind.  For information or legal advice on your individual circumstances, please contact Our Wills & Estates Law Team.

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