Most people don’t like to think about death, let alone plan for it. Yet the reality is that around 60% of Canadians don’t have an updated will, leaving their families unprepared when the unexpected happens.
If you pass away without a will in Ontario, the law decides who inherits your property and how your estate is managed. This process is called intestacy, and it often leads to results you may not have wanted.
For Ontario residents, including those in Kingston and the surrounding communities, understanding what happens if you die without a will is essential. Without clear instructions, your family could face unnecessary stress, delays, and even conflict.
At RBHF Law Firm, we’ve helped countless families navigate these challenging situations. In this guide, we’ll explain what it means to die intestate in Ontario, who inherits under Ontario law, the risks for common-law partners and minor children, and explain why estate planning with a local lawyer is one of the best decisions you can make.
Understanding Intestacy: What Does “Dying Without a Will” Mean?
When someone dies without leaving a valid will, they are said to have died intestate. Their estate, including everything they owned, real estate, bank accounts, and personal belongings, will be distributed according to Ontario’s Succession Law Reform Act.
What Makes a Will Valid in Ontario?
To avoid intestacy, your will must meet the following legal requirements:
- It must be in writing.
- You must sign it in the presence of two witnesses.
- Witnesses must also sign in your presence.
There are exceptions, such as handwritten “holograph” wills, but these are often contested.
Wills may also be declared invalid if they were created under undue influence, lack of capacity, or improper execution.
If a will is found invalid, the estate is treated as though no will exists. Instead of an executor named by the deceased, the court appoints an estate trustee to manage the estate.
Ontario’s Intestacy Laws: How Your Estate Will Be Distributed
Provincial law lays out a strict order for distributing property when someone dies without a will. This is called intestate succession.
Let’s look at how it works in different scenarios:
If You’re Married with No Children
If you die married but without children, your surviving spouse inherits the entire estate. In Ontario, spouse means someone you are legally married to; common-law partners are not included under this definition.
If You’re Married with Children
Here’s where things get more complicated:
- Your spouse receives a preferential share of $200,000.
- The remainder of the estate is divided: one-third to your spouse and two-thirds shared equally among your children.
If a child has died but left children of their own, that child’s share passes to them; this is called per stirpes distribution.
Stepchildren are omitted unless they were legally adopted.
If You Have Children But No Spouse
The estate is divided equally among your children. If a child has passed away, their children inherit their share. Guardianship of minor children is also left to the court to decide, which can be deeply unsettling for families.
If You Have No Spouse or Children
The order of succession is:
- Parents (equally, if both alive).
- Brothers and sisters (or their children if deceased).
- Nieces and nephews.
- More distant relatives in descending order.
If no living relatives can be located, the estate passes to the Crown, meaning the government of Ontario inherits everything.
Important Notes
- Common-law partners: They do not have automatic inheritance rights in Ontario, no matter how long they’ve lived with the deceased.
- Jointly owned property (like a home held in joint tenancy) usually passes directly to the surviving co-owner.
- Life insurance policies, RRSPs, and TFSAs with named beneficiaries bypass intestacy rules.
The Role of the Estate Trustee Without a Will
When a valid will exists, the executor named by the deceased steps in to manage the estate. But if there’s no will, there’s no executor.
Instead, Ontario law requires someone to apply to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee Without a Will.
This certificate gives that person the legal authority to access accounts, pay debts, and distribute property according to the province’s intestacy rules.
This process often comes as a surprise to families: banks, insurance companies, and even government agencies won’t release funds or transfer property until the certificate is granted.
That means nothing can move forward until someone takes on this legal responsibility.
Who Can Apply?
Ontario law sets out a priority list for who has the first right to apply:
- Surviving spouse: The legally married spouse is at the top of the list.
- Children: If there’s no spouse, adult children may apply.
- Parents: If there’s no spouse or children, surviving parents have the right.
- Siblings: Brothers and sisters are next in line.
- More distant relatives: If none of the above exist, the right passes outward to nieces, nephews, cousins, and so on.
If multiple people with equal standing want to apply, such as two adult children, it can lead to disputes or the court requiring them to act jointly.
In situations where no suitable relative is available, the court may appoint a Public Guardian and Trustee to administer the estate.
Challenges of Being an Estate Trustee Without a Will
Taking on this role is a significant responsibility. An estate trustee must:
- Collect and safeguard all assets, including property, bank accounts, and personal belongings.
- File tax returns and pay outstanding debts before distributing assets.
- Distribute the estate according to the strict rules of intestate succession in Ontario, not personal preference.
Unlike an executor named in a will, an estate trustee without a will does not have the benefit of clear guidance from the deceased. They must rely entirely on the law, which can create difficult situations, like dividing sentimental items among siblings without knowing what the deceased may have wanted.
Additional Legal Requirements
The court may also require the estate trustee to post a bond (a type of insurance policy) to protect creditors and beneficiaries. This can be expensive and time-consuming, adding another layer of complexity.
For families in Kingston and across Ontario, this means that settling an intestate estate often takes longer, costs more, and places extra stress on the person who steps into the trustee role.
Having a valid will in place avoids these complications and ensures a smoother transition for loved ones.
Responsibilities of the Estate Trustee
The estate trustee is responsible for:
- Gathering and valuing all assets.
- Paying debts and taxes.
- Distributing the estate according to intestacy rules.
Because there’s no will to guide them, this process often takes longer, costs more, and may require posting a bond as financial security.
For Kingston residents, navigating the Superior Court of Justice (Family Court) in the area can be overwhelming without legal help.
What Happens If You Die Without a Will in Ontario: Common Problems and Complications
Families often underestimate the problems that arise from dying without a will in Ontario.
Some common issues include:
- Family disputes over who gets what.
- Delays in probate occur as courts determine the estate trustee and distribution.
- Higher legal and administrative costs reduce what heirs ultimately receive.
- Tax implications, including missed opportunities for tax planning strategies.
- Business succession challenges if the deceased owned a company.
- Guardianship issues for minor children.
- Blended family conflicts, especially where stepchildren are involved.
In short, the lack of a will can create confusion, resentment, and unnecessary hardship.
Special Circumstances in Ontario
Some situations add even more complexity:
- Common-law relationships: Partners may have to rely on expensive legal claims for support or property division.
- Indigenous estates: Special rules may apply to property on reserves.
- Foreign assets: Estates with property outside Ontario may trigger international estate law issues.
- Business ownership: Without a succession plan, businesses may face closure or forced sale.
- Farms and rural property: In Kingston’s surrounding rural areas, family farms often require careful planning to keep land in the family.
- Beneficiaries with disabilities: Without planning, they may lose access to essential government benefits.
- Debt and liabilities: Creditors must be paid first, sometimes leaving little for heirs.
How to Avoid These Problems: The Importance of Estate Planning
The good news? All of these problems are preventable with proper planning.
Why You Need a Will
A valid will ensures that:
- Your assets are distributed the way you want.
- You choose your executor.
- Guardianship of minor children is clearly outlined.
- Your family avoids unnecessary court battles and expenses.
Beyond a Will: Comprehensive Estate Planning
- Powers of attorney for property and personal care.
- Living wills to guide medical decisions.
- Trusts to protect vulnerable beneficiaries.
- Tax planning to maximize what you leave behind.
For Kingston residents, working with a local Kingston lawyers like RBHF Law Firm ensures your plan meets provincial laws and considers your family’s unique needs.
We offer personalized guidance, whether you need a first will, an update, or help with complex family situations.
Key Takeaways
Dying without a will in Ontario means your estate is distributed according to strict laws—not your wishes.
Common-law partners, stepchildren, and even minor children can face significant disadvantages by being left out of the process.
Intestate estates are slower, more expensive, and more stressful for families, further complicating what is already a difficult experience.
With proper estate planning, you can avoid disputes, protect loved ones, and reduce costs.
Don’t leave your family vulnerable. Protect your legacy today by creating a will and planning your estate.
Contact RBHF today to speak with a Kingston estate planning lawyer.