When a person dies without a Will, called “intestate”, the Ontario Succession Law Reform Act sets out how the deceased’s estate is distributed.
- Common law spouses do not apply
- If you are legally married and do not have any children, your spouse is entitled to your entire estate (SLRA s.44)
- If you are legally married and you have children, there is something called the “Preferential Share”, which is $200,000. Your spouse is entitled to the Preferential Share (i.e. $200,000).
- Anything left over is called the residue. If anything is left over, it is divided between your spouse and your children as follows: If there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally (SLRA s. 46)
- If your estate is worth less than $200,000 than the entire amount goes to your spouse whether or not you have children (SLRA s.45(1)).
Children, But No Spouse?
- The children each inherit an equal portion of your estate. If any of them have died, that child’s descendants will inherit their share in equal portions.
No Spouse, No Children?
- Your parents will inherit your entire estate equally (SLRA s.47(3))
No Immediate Family?
- Nephews/Nieces share equally (SLRA s.47(5))
None of the Above?
- Nearest next-of-kin of equal degree (SLRA ss, 47(6), (8))
- Estate becomes the property of the Crown (SLRA s.47(7))
Who is considered a relative?
- Only blood relatives, including children born outside of marriage or legally adopted children can inherit.
Even if you want your property to be divided up according to the provincial law, you should still have a Will as it will reduce delays and expenses involved in wrapping up your affairs. If you die without a will the court will have to appoint someone to act as your Estate Trustee. Only Ontario residents can apply to be an estate trustee of a person who died without a Will. The general rule is that your spouse, common-law partner, or child apply to be your estate trustee.