When a loved one passes away without a valid Will, it can be an overwhelming and emotional time. In legal terms, this is referred to as dying “intestate.” In Ontario, the distribution of an intestate estate is governed by the Succession Law Reform Act (SLRA). Understanding what happens when someone dies intestate can help you navigate the process more smoothly and know what to expect during this challenging time. Below, we break down the key points of what occurs when someone dies intestate in Ontario.

By Rohan Singh, Barrister & Solicitor  

The Role of the Estate Trustee

If a person dies without a Will, there is no appointed executor (or estate trustee). In such cases, an estate trustee must be appointed by the court to administer the estate. Typically, a family member applies to the Ontario Superior Court of Justice for a “Certificate of Appointment of Estate Trustee Without a Will.” The appointed trustee will have the responsibility of managing the estate, paying debts, and distributing the assets according to the intestacy rules.

Distribution of Assets Under Ontario’s Intestacy Rules

The distribution of assets when someone dies intestate follows a specific hierarchy outlined in the SLRA. The way the estate is divided depends on the surviving relatives of the deceased. Here’s a breakdown of the common scenarios:

If the deceased is survived by a spouse and no children: The entire estate goes to the spouse.

If the deceased is survived by a spouse and children: The first $350,000 of the estate (called the preferential share) goes to the spouse. The remainder is divided, with one-third going to the spouse and the rest being split equally among the children. If there are more than one child, the division occurs equally.

If the deceased has children but no spouse: The estate is divided equally among the children. If a child has predeceased the person who died intestate, their share goes to their children (the grandchildren).

If there are no spouse or children: The estate is distributed to other next of kin, starting with parents, then siblings, and then more distant relatives if no closer family members are alive.

Special Considerations for Common-Law Spouses

It’s important to note that, under Ontario law, common-law spouses are not automatically entitled to a share of the estate under intestacy rules. If a common-law spouse wishes to claim part of the estate, they may need to rely on other legal mechanisms, such as filing a claim for support under the Family Law Act. This can be a complex process, and seeking legal advice is highly recommended.

The Role of Guardians for Minor Children

If the deceased left behind minor children, a court may need to appoint a guardian to manage the children’s inheritance until they reach the age of 18. If no guardian is named, the Office of the Children’s Lawyer of Ontario may step in to safeguard the interests of the children.

Taxes and Debts

Just like any estate, debts of the deceased must be settled before the estate can be distributed. This includes outstanding loans, mortgages, and taxes. The estate trustee is responsible for paying these obligations using the estate’s assets. Additionally, Ontario imposes an Estate Administration Tax (EAT), calculated as a percentage of the total value of the estate.

Avoiding Intestacy

To avoid the complications of intestacy, it’s crucial to have a valid Will in place. A will provides peace of mind and ensures that your estate is distributed according to your wishes. It can also reduce the emotional and financial burden on loved ones after your death. If you do not have a Will, it’s never too early to consider preparing one with the help of a lawyer who specializes in estate planning.

Conclusion

Dying intestate can create challenges for families and loved ones, as the estate will be distributed according to a set legal framework rather than the deceased’s personal wishes. If you find yourself managing an intestate estate or if you want to ensure that your loved ones are protected from these challenges in the future, consulting with a lawyer is a smart step. Our team at Douglas Law Firm is here to help guide you through the estate administration process and provide tailored advice to suit your specific situation.