- Dying without a will means legislation decides who inherits, in a fixed order.
- A spouse does not automatically inherit everything where there are children.
- Common-law partners are not included in the intestacy scheme at all.
- Someone must apply to be appointed to administer the estate, which is slower and usually more expensive.
The default plan
Everyone has an estate plan. People who do not make a will simply have the one the legislature wrote, and it is a blunt instrument, applied identically to every family.
The Succession Law Reform Act sets out who inherits and in what shares. It does not know anything about the deceased’s relationships, intentions, or the circumstances of the people left behind.
The order of distribution
In broad outline:
- A married spouse with no children inherits the whole estate.
- A married spouse with children receives a preferential share, and the remainder is divided between the spouse and the children in proportions that depend on how many children there are.
- Children with no surviving spouse share the estate equally, with a deceased child’s share generally passing to their own children.
- Where there is no spouse and no issue, the estate passes to parents, then siblings, then nieces and nephews, then more remote next of kin.
- Where no relatives can be found, the estate ultimately goes to the Crown.
The preferential share is a fixed amount set by regulation, and it changes from time to time, so it should be checked rather than assumed.
Where the scheme causes real problems
Common-law partners. They inherit nothing on an intestacy. A partner of twenty years, sharing a home, receives no share under the statute. They may have a dependant support claim or a trust claim, but that means litigation rather than inheritance.
Blended families. The scheme divides between a spouse and children by formula. Where the children are from a previous relationship, the result is frequently a forced sale of the home to fund the children’s shares.
Minor children. A minor cannot receive an inheritance directly. Funds are typically paid into court and released at eighteen, in a lump sum, with no ability to stage payments as a will could.
Married spouse election. A surviving married spouse may have a choice between taking under the intestacy and claiming an equalisation payment under family law. There is a deadline for making it, and the two routes can produce very different results.
Administering an intestate estate
With no will there is no named executor. Someone must apply to the court for a Certificate of Appointment of Estate Trustee Without a Will.
There is an order of priority for who may apply, and where several people are equally entitled, consents from the others are generally needed. Disagreement here can delay an estate for months.
An administrator may also be required to post a bond, which is an additional cost and administrative burden that a will can avoid.
The practical result is that intestacy is slower, more expensive, and more prone to conflict than an estate with a valid will.
What does not pass through the estate
Some assets pass outside the estate regardless of a will or intestacy. Property held in joint tenancy with a right of survivorship goes to the surviving joint owner. Registered plans and insurance policies with a named beneficiary go to that beneficiary.
This matters in both directions. It can move significant value outside the intestacy scheme, and it can defeat an intended plan where a designation was never updated after a change in circumstances.
Common questions
Does my spouse automatically get everything?
Only where there are no children. With children, the estate is divided according to the statutory formula.
Does a common-law partner inherit anything?
Not under the intestacy rules. Any claim would be a dependant support or trust claim, which must be brought and proved.
Who becomes guardian of my children if I have no will?
The court decides, on an application, without the benefit of the parent’s expressed wishes. A will cannot bind the court but does carry significant weight.
Is a handwritten will valid in Ontario?
A holograph will, entirely in the testator’s own handwriting and signed by them, can be valid without witnesses. It carries risks, but it is not automatically void.
