What happens to your property if you die without a will in Ontario?

Senior Couple Estate Planning

What happens to your property if you die without a will in Ontario?

Many people mistakenly think that the government takes your assets and estate if you die without a will. This is not true.

There are laws that govern what happens when someone dies without a will. While it is always preferable to have a will to express your own choices as to what should happen to your assets and estate after death, the laws that apply distribution of the property of the deceased without a will (called “intestate succession”) attempt to equitably distribute the assets of the deceased among the deceased party’s relatives.

Who Takes Care of Your Estate after You Die?

When a person dies without a will someone, usually a close relative, must apply to the court to be appointed as the estate trustee without a will. If there is a dispute as to who should be appointed the matter must be referred to a judge to determine the most appropriate person to act as estate trustee. The Ministry of Attorney General has a great resource that details how an estate is distributed without a will.

Duties of the Estate Trustee

The Estate Trustee must identify and locate all of the assets and liabilities of the estate, and must ensure that liabilities of the estate including debts, funeral expenses, estate administration costs and taxes are paid. The balance left over after payment of these liabilities forms the assets available for distribution from the estate. The trustee is a fiduciary and must account for every asset.

What is a Wife Entitled to if her Husband Dies Without a Will?

In Ontario, the Succession Law Reform Act and the Family Law Act intersect to create rights for the surviving spouse (husband or wife) of the deceased.

The Family Law Act defines a spouse as a married person, and the term spouse in this act does not include co-habiting parties or common law partners. Under this Act, a married spouse is entitled to receive one-half of the amount by which the deceased’s net family assets exceed the net family assets of the surviving spouse. This “equalization payment” ensures that the surviving spouse has the opportunity to share equally in any increase in the value of the property that the couple earned over their marriage. The surviving married spouse must elect to accept this payment OR to take what they are entitled to under Part II of the Succession Law Reform Act.

Under the Family Law Act the married spouse also has the right to remain in possession of the matrimonial home for a period of 60 days following the death of their spouse, on a rent-free basis.

On the other hand, the Succession Law Reform Act gives all spouses (married and common law) whose spouse dies without having made a valid will a preferential share, being the right to receive the first $200,000.00 of assets from their deceased spouse’s estate, and in addition they have the right to share in the balance of their deceased husband’s estate as set out below. The surviving spouse must choose between the entitlement to equalization and the property rights that they would receive under the Succession Law Reform Act.

What Do Children Get when a Parent dies without a Will?

The Succession Law Reform Act sets up a scheme to divide the estate of a person who dies without a will. If the deceased had assets worth less than $200,000 at the time of their death their spouse will be entitled to the entire estate. If the assets of the deceased are worth more than $200,000 then the remainder of the estate after payment of the preferential share will be divided as follows:

If the deceased had a spouse and 1 child, they each get one half of the remainder of the estate.

If the deceased has one spouse and more than one child the spouse gets 1/3rd and all of the children share equally in 2/3rds of the remainder of the estate.

If a child has predeceased his parent but would have otherwise been entitled to share in the estate of that parent, that child’s share will be divided among his children that survive him.

What About Other Relatives?

If the person who died intestate leaves no spouse, children or issue living at their death, then their estate is divided among their parents; if they have no surviving parent it is divided among their brothers and sisters equally; and if they have no brothers or sisters surviving them it is shared among their nieces and nephews (related by blood, not marriage); and if they have no surviving nieces or nephews then it gets distributed among their next closest next of kin.

Only when a person dies having no will, no spouse, child, issue, parent, sibling, niece, nephew, or next of kin surviving them will their property then “escheat” and become the property of the government.

What if I need Support?

If the deceased was legally or morally responsible to provide support to someone but did not make adequate arrangements for support (for example for a child of a prior marriage), then the defendant may bring a claim for relief and the court will determine what support, if any, is applicable in the circumstances, and the judge may make an order for payment of same from the assets of the estate. The order may supercede the interests of a spouse or others noted above.

As an estate litigation law firm in Barrie, we at Stewart Esten appreciate the importance of properly managing the inheritance of an estate. As you can see above there can be a process involved when a family member dies without a will. Creating a will can help relieve the burden of stressing over the estate inheritance process after you pass. Our lawyers Judith L. Turner, Andrew K. Zyp and Meghan E. Rowland will assist you in preparing wills and Power of Attorney to protect you and your family.

The purpose of this article is to provide general information about the provincial scheme for distribution of property when someone dies without a will. This paper is general in nature and is not intended and should not be used as legal advice.

Stewart Esten
stewest@stewartesten.ca
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