As lawyers we always recommend that you have a will and estate plan. However if you or someone you loves passes away without a will in Ontario, this article will explain how the remaining estate will be distributed.
Who inherits your estate when you die without a will
In broad terms, what happens is you leave the management and distribution of what you leave behind in the hands of the government.
Spouse
If you are married at the time of death, your spouse is entitled to inherit your entire estate, provided you do not have any children.
If you do have children, your spouse can inherit the first $350,000 of the estate (increased from $200,000 as of February 2021). Any amount exceeding this threshold is divided equally among your children.
Previously, even if you had separated from your spouse, they still had a right to inherit from your estate under Ontario laws. However, changes to the legislation in 2021 mean that this is no longer the case. To be considered a “separated spouse” for intestacy (dying without a will) purposes, you must meet specific criteria, including:
- Living Separate and Apart:
- Have lived separately for a period of three years immediately preceding death, or
- Have a valid separation agreement under Part IV of the Family Law Act, or
- Have a court order addressing their rights and obligations following the marriage breakdown, or
- Have a family arbitration award under the Arbitration Act, 1991.
- Living Conditions at Time of Death: At the time of death, they must still be living separate and apart. (Succession Law Reform Act, RSO 1990, c S26, s 43.1(2) [SLRA].)
Common-Law Spouse
A common-law relationship is defined as living in a conjugal relationship for at least three years or if you share a child and cohabited for any amount of time. If you are in a common-law relationship at the time of your death, your partner is not entitled to inherit from your estate under Ontario law. While jointly owned assets may transfer to them upon your passing (known as right of survivorship), this is not guaranteed. For instance, without clear evidence of intent regarding ownership a joint bank account, it may be treated as held in trust for your estate, complicating access for your common-law spouse.
However, your common-law spouse may be able to claim dependant support or unjust enrichment from your estate, and may be entitled to pensions or insurance.
Family
If you do not have a spouse but do have children, your estate will be divided equally among them. If you are a parent of minor children and die without a will, there is a chance that any of your wishes pertaining to their care and upbringing that were not put into a court-approved agreement will not be taken into consideration.
If you do not have children, the government will look for eligible relatives in a specific order. This order does not take into account the personal relationships, or lack thereof, that you would have with these relatives.
Wills & estates
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Wills and powers of attorney, done properly and painlessly, from your couch.
Who Inherits Your Estate When You Die Without A Will
- Spouse (preferential share $350,000, children split remainder evenly)
- Children
- Grandchildren
- Great-grandchildren
- Great-great grandchildren etc.
- Parents
- Siblings
- Nephews/Nieces
- Grandniblings, etc.
- Grandparents
- Aunts / Uncles
- Cousins
No Family
If no identifiable family members are located, your property will escheat to the government, meaning all of your assets become government property.
No Matter What, You Make It Harder for Those You Leave Behind
Not having a will in place creates many unnecessary challeneges for your loved ones. They may struggle to determine their next steps immediately after your passing as they don’t know what they have the authority to do and could face challenges with various companies and government agencies while trying to secure your assets.
Additionally, the care and ownership of any pets you leave behind may lead to confusion and conflict, ultimately falling under government oversight and inheritance rules.
The person who is entitled, and willing, to settle your affairs will have to apply to the courts for the appointment of an executor in the absence of a will. Typically, your spouse or common-law partner has the first right to apply, followed by other next-of-kin.
This probate process can cause delays and disputes, especially if family members disagree. These conflicts are likely, as the distribution of your estate will follow government rules that may not align with your wishes or the life you lived.
Furthermore, dying without a will eliminates the chance to avoid probate. In some cases, an executor named in a will can manage assets without court intervention, thereby bypassing the probate application process, associated taxes, and saving valuable time.
Dying without a will in Ontario can complicate matters for your loved ones, as your estate will be distributed according to government rules that may not reflect your wishes. Without a will, your spouse or common-law partner may struggle to secure their rights, and your children may not receive the care you intended.
This can lead to delays and disputes during an already difficult time. To protect your loved ones and ensure your wishes are honoured, consider creating a will today. Contact our estate planning lawyers to get started.
How is inheritance split when there is no will in Ontario?
Inheritance will go to your spouse (only the first $350,000 if you have children), or, if none, to your next of kin based on the degrees of consanguinity.
What happens to a bank account when someone dies without a will?
It depends on the account type. Sole accounts are usually closed until someone receives government authorization to access it, though some banks may allow bill payments in the deceased’s name in the meantime. Joint accounts may not guarantee access, as funds might be considered held in trust for the estate.
What is the order of inheritance in Ontario?
If the deceased had a spouse, they receive the first $350,000. After that, distribution follows blood relations: children, grandchildren, parents, siblings, nieces and nephews, and so on, moving outward in the family tree.
What Happens to Bank Accounts When You Die Without a Will in Ontario?
When someone dies without a will, their bank accounts do not simply transfer to next of kin. Banks treat the absence of a will as a serious risk and lock the accounts the moment they receive notice of the death. The funds inside are not lost, but accessing them requires specific legal steps.
Why the Account Gets Frozen
Banks freeze sole accounts on death to protect the estate from unauthorized withdrawals and to make sure all creditors and beneficiaries are treated fairly. Until someone is formally appointed by the court as the estate trustee (also called administrator when there is no will), the bank will not release the funds, change ownership, or pay bills out of the account. This freeze applies regardless of whether you held a power of attorney while the person was alive. POA authority ends at death.
How to Get Access (the Administrator Process)
To unlock the accounts, an eligible person (usually the spouse or closest next of kin) applies to the Ontario Superior Court for a Certificate of Appointment of Estate Trustee Without a Will. The court reviews the applicant, the value of the estate, and any objections from other relatives. Once granted, the certificate gives the administrator legal authority to deal with the bank, sell property, file taxes, and distribute the estate according to Ontario’s intestacy rules.
Most banks will release small balances (often under $25,000 to $50,000, depending on the institution) without requiring a Certificate, especially when there is a clear next of kin and an indemnity is signed. Above the bank’s internal threshold, the Certificate is required.
Joint Accounts and Right of Survivorship
Joint accounts held with right of survivorship work differently. The surviving joint owner usually has immediate access to the funds without going through probate or appointment. The bank simply needs a copy of the death certificate to remove the deceased’s name. However, joint ownership between a parent and an adult child can sometimes be challenged in court (the Pecore v. Pecore line of cases), where the issue is whether the joint title was true co-ownership or held in trust for the estate.
Practical Steps for Family Members
- Notify the bank promptly and provide the original death certificate.
- Ask the bank for its specific small estate threshold and what indemnity it accepts.
- Begin gathering documents for the Certificate of Appointment application: death certificate, full asset inventory, list of next of kin, and proof of relationship.
- Pay essential bills (mortgage, utilities) through the bank’s estate department where possible. Many banks will pay these directly to creditors from the frozen account during administration.
- Avoid using the deceased’s debit card, online banking, or pre-authorized transfers. Even with POA history, doing so after death can be treated as fraud.
If your loved one held accounts at multiple institutions, expect the process to take longer. Each bank has its own policies and threshold limits. An estate lawyer can streamline the process by preparing the Certificate application, coordinating with each bank, and making sure distributions follow Ontario’s intestacy rules under the Succession Law Reform Act.
