The loss of a parent is an emotional and challenging time, and navigating what happens to their estate can add to the stress. This can be amplified for a number of reasons, and especially if they didn’t leave a will. In Ontario, this results in their estate being distributed according to the province’s intestacy laws under the Succession Law Reform Act (SLRA). These laws outline what a child may be entitled to when a parent dies intestate, but the rules can vary based on the child’s age, the parent’s marital status, and the family structure.
Here’s a breakdown of what children whether minors or adults, can expect when a parent dies without a will in Ontario.
How it Works in Ontario When You Die Without a Will
When a person dies without a will in Ontario, their estate is distributed according to a set formula under the SLRA. The priority is to the deceased’s spouse (if any), followed by their children. For purposes of intestacy, a “child” includes biological and legally adopted children but does not include stepchildren unless they were legally adopted.
When someone dies without a valid will in Ontario, their estate must go through the probate process in order to obtain the property authority to settle and distribute the estate. This can create unnecessary uncertainties, delays and complications, adding to the stress of an already challenging situation.
What a Child is Entitled to When the Parent Was Married
If the parent was married at the time of their death, the spouse has the first claim to the estate. The rules are as follows:
- Preferential Share: The spouse is entitled to a preferential share of the estate, which is currently set at $350,000 in Ontario (for estates of individuals who died on or after March 1, 2021, see the regulation below).
- Remainder of the Estate: After the preferential share is allocated, the remainder of the estate is divided:
- If the deceased has one child, the remainder is split 50/50 between the spouse and the child.
- If the deceased has more than one child, the spouse receives one-third of the remainder, and the children split the other two-thirds equally.
Children’s Entitlements to Their Parent’s Estate Based on Age
- Minor Children: If any children are under 18, their share of the estate is held in trust. The parent’s surviving spouse or a court-appointed guardian typically manages this trust until the child turns 18. The funds are intended for the child’s benefit, covering education, living expenses, or other needs.
- Adult Children: Adult children receive their share outright once the estate is distributed.
It’s important to note that intestacy laws make no distinction based on the child’s financial situation or relationship with the deceased parent.
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What the Child is Entitled to When the Parent Was Not Married and Dies Without a Will
If the parent dies without a spouse, the entire estate is divided equally among the children. Minor children will still have their share held in trust until they reach adulthood.
If the parent had no spouse or children, the estate passes to the next closest relatives, such as parents, siblings, or nieces and nephews, as dictated by the SLRA.
Stepchildren vs. Adopted Children
Intestacy laws treat stepchildren and adopted children very differently:
- Adopted Children: Legally adopted children have the same inheritance rights as biological children under Ontario’s intestacy laws. Once adopted, they are considered full legal heirs of their adoptive parents.
- Stepchildren: On the other hand, stepchildren are not entitled to inherit under intestacy laws unless they were legally adopted by the deceased. This means that even if a stepchild had a close relationship with the deceased, they would not automatically inherit any portion of the estate.
For blended families, this distinction can cause complications. Parents in such situations should strongly consider creating a will to ensure that all children are provided for according to their wishes.
What About the Deceased Parent’s Debts?
Before any inheritance is distributed, the estate must pay off debts and liabilities. This includes taxes, outstanding loans, and funeral expenses. Only the remaining assets are distributed to the beneficiaries, including children.
Contested Estates and Other Possible Complications
Intestacy can lead to disputes among family members, particularly in situations involving blended families, estranged children, or claims from creditors. Children who feel they have been unfairly excluded or who disagree with the distribution of assets may file a claim under Ontario’s provisions for dependants’ relief. This allows “dependants” to seek additional support from the estate if they can demonstrate financial need and dependence on the deceased parent.
The legal definition of “dependant” in this context is:
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.
Section 57 of the Succession Law Reform Act, RSO 1990, c S26
Protecting Your Children: The Importance of a Will
When a parent dies without a will in Ontario, children’s inheritance is determined by strict intestacy laws. While biological and adopted children are entitled to a share of the estate, stepchildren are excluded unless they were legally adopted. For minor children, inheritance is held in trust until they reach adulthood, and this can be a cause for concern when the person who ends up in charge of a minor child’s trust account is not who the parent would want to make financial decisions on behalf of their child.
The law provides a default structure, but this distribution regime rarely aligns perfectly with a family’s unique needs. Parents can avoid many of these complications by preparing a comprehensive will. Doing so ensures that their children are cared for and their wishes are honoured, which is a peace of mind worth investing in.
Who inherits when there is no will in Canada?
The law of intestacy dictates how an estate is distributed when there is no will, giving first priority to the legal spouse, then the deceased children. Should they have neither, the closest relatives are next in line.
Do my parents have to include me in the will?
No, they don’t. If they have been financially supporting you immediately before their passing, or you are a minor, you may be entitled to dependant support and relief, but you are not automatically entitled to a certain portion of their estate if they have a will.
How are assets split if there’s multiple children?
While parents are free to choose how to split their assets in their will, in the absence of estate planning, the assets will be split equally between children (after their spouse’s preferential share).
