What Happens When Someone Dies Without a Will in Ontario?
- Sara Santos-Vigneault
- Jul 13
- 14 min read
Written by: Sara Santos-Vigneault
Date: July 13, 2026
A common-law couple can share a home, raise children and file taxes together for twenty years, and still leave one partner with no automatic legal claim to a cent of the other's estate the day after death. That outcome surprises many Ontarians, and it has become more visible in recent years as the province's rules on marriage, separation and estates have been rewritten piece by piece since 2022.
When someone dies without a valid Will in Ontario, their property does not automatically go to the person they were closest to. Instead, Ontario law determines who may manage the estate and which relatives are entitled to inherit.
The rules are mainly found in Ontario's Succession Law Reform Act. These rules create a standard order of inheritance, but they do not consider the deceased person's personal relationships, verbal promises or individual wishes. [1]
Terms Explained
Deceased
The deceased is the person who has died.
Estate
An estate generally consists of the money, property and other assets that legally belonged to the deceased at the time of death.
An estate may include:
money in bank accounts;
a house or other real estate;
vehicles;
investments;
personal belongings;
money owed to the deceased; and
certain business interests.
The estate may also be responsible for debts, taxes, funeral expenses and estate administration costs.
Beneficiary
A beneficiary is a person or organization that receives money or property after someone dies.
When there is a Will, the Will usually identifies the beneficiaries. When there is no Will, Ontario law determines who the beneficiaries are.
A person does not become a beneficiary merely because they were close to the deceased, cared for the deceased or were verbally promised an inheritance.
Will
A Will is a legal document that states how a person wants certain property distributed after death. It commonly identifies an executor, beneficiaries and the gifts that each beneficiary is to receive.
Executor and Estate Trustee
An executor is the person named in a Will to manage the estate.
When there is no Will, there is no named executor. A person may instead apply to the Superior Court of Justice for authority to act as the estate trustee without a Will, a role governed by the Estates Act. [7] This person performs many of the same duties as an executor.
Intestate
A person dies intestate when they die without a valid Will governing the distribution of their estate.
A person may also die partly intestate if a Will deals with some property but does not properly distribute the remainder.
Spouse
For Ontario's intestacy rules, the word spouse generally refers to a person who was legally married to the deceased.
This distinction is important because a common-law partner is not treated the same as a legally married spouse under Ontario's automatic intestacy rules.
Common-Law Partner
A common-law partner is generally someone who lived with the deceased in a marriage-like relationship without being legally married.
Different laws use different definitions of a common-law relationship. For example, Ontario family-support legislation generally recognizes unmarried partners who lived together continuously for at least three years, or who had a relationship of some permanence and were the parents of a child. [2]
However, meeting a common-law definition for one legal purpose does not necessarily provide the same rights for another purpose.
Most importantly, a common-law partner does not automatically inherit under Ontario's intestacy provisions.
Descendant
A descendant is a person who comes from the deceased's direct family line. This may include a child, grandchild or great-grandchild.
A stepchild who was never legally adopted is not ordinarily treated as the deceased's child under the intestacy rules.
Which Property Is Distributed Under the Intestacy Rules?
Not every asset connected to the deceased necessarily becomes part of the estate. Some property may pass directly to another person outside the estate.
Examples may include:
life insurance with a named beneficiary;
an RRSP, RRIF or TFSA with a valid beneficiary designation;
pension benefits payable to a named person;
property held in a trust; and
property jointly owned with another person where a right of survivorship applies.
A named beneficiary is a person specifically identified on an account, policy or plan to receive that asset after the owner dies.
A right of survivorship generally means that when one joint owner dies, the surviving joint owner becomes the owner of the property.
Joint ownership does not always settle the issue. The legal result may depend on how the property was purchased, why the other person was added as an owner and whether the surviving owner was intended to receive the property beneficially.
Property that passes directly to another person is generally not divided under the intestacy rules. The remaining estate property is distributed according to the Succession Law Reform Act.
Who Manages an Estate When There Is No Will?
Without a Will, no one automatically has the authority of an executor.
A person may have to apply to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee Without a Will. The certificate confirms the applicant's legal authority to administer the estate. [3]
A surviving spouse or another close relative will often apply, but being the closest relative does not automatically provide authority to deal with every estate asset.
The court application may require information about:
the deceased;
the value of the estate;
the people entitled to inherit;
the applicant's relationship to the deceased; and
any other person who has an equal or greater right to apply.
Depending on the circumstances, the court may also require the applicant to provide an administration bond or obtain the consent of other beneficiaries.
Once appointed, the estate trustee is responsible for matters such as:
locating and protecting estate assets;
identifying beneficiaries;
determining the deceased's debts;
dealing with creditors;
filing required tax returns;
paying valid expenses and taxes;
maintaining proper financial records; and
distributing the remaining estate according to Ontario law.
The estate trustee does not own the estate property personally. The property is administered for the benefit of the estate and its lawful beneficiaries.
Who Inherits When There Is a Married Spouse but No Children?
If the deceased was legally married and had no surviving descendants, the surviving spouse generally receives the entire estate. [1]
This applies to the portion of the estate governed by the intestacy rules. It does not necessarily include property that already passed outside the estate through joint ownership or a beneficiary designation.
Ontario law also contains rules that may prevent a married spouse from inheriting on an intestacy where the spouses were separated before the death and the statutory separation conditions are met. The legal effect depends on the facts and the requirements contained in the legislation, discussed further below. [1]
Who Inherits When There Is a Married Spouse and Children?
When the deceased leaves a legally married spouse and one or more descendants, the surviving spouse is generally entitled to receive a preferential share first.
The preferential share is a fixed amount established by Ontario regulation. It is currently $350,000 for deaths occurring on or after March 1, 2021. [4]
The calculation is made from the estate remaining after funeral expenses, debts and other proper estate expenses have been addressed.
Estate Worth $350,000 or Less
If the net estate is worth no more than the preferential share, the surviving married spouse generally receives the entire estate.
The children do not receive a portion under the intestacy formula because there is no remaining balance after the spouse's preferential share.
Estate Worth More Than $350,000
If the net estate exceeds $350,000, the spouse receives the preferential share first. The balance is then divided between the spouse and the deceased's descendants.
If the deceased leaves a spouse and one child:
the spouse receives the $350,000 preferential share;
the remaining balance is divided equally between the spouse and the child.
If the deceased leaves a spouse and two or more children:
the spouse receives the $350,000 preferential share;
the spouse receives one-third of the remaining balance;
the children divide the other two-thirds.
Example: Spouse and One Child
Suppose the net estate is worth $550,000.
The spouse receives the first $350,000. That leaves $200,000.
The remaining $200,000 is divided equally:
spouse: an additional $100,000;
child: $100,000.
The spouse receives a total of $450,000, while the child receives $100,000.
Example: Spouse and Two Children
Suppose the net estate is worth $650,000.
The spouse receives the first $350,000. That leaves $300,000.
The remaining $300,000 is divided as follows:
spouse: one-third, or $100,000;
children: two-thirds, or $200,000.
If there are two children, each child receives $100,000.
The spouse receives a total of $450,000.
These examples are simplified. The actual estate value may depend on debts, taxes, ownership arrangements, beneficiary designations and other legal issues.
What Happens If a Child Died Before the Parent?
If a child of the deceased died earlier but left their own descendants, those descendants may inherit the share that their parent would have received.
For example, suppose the deceased had two children, but one child died before the deceased. If that child left two children of their own, those grandchildren may divide their deceased parent's share.
This form of distribution allows a deceased child's branch of the family to remain represented in the inheritance.
Do Common-Law Partners Automatically Inherit?
No. In Ontario, an unmarried common-law partner does not automatically receive a share of the estate under the intestacy provisions of the Succession Law Reform Act.
This remains true even when the couple:
lived together for many years;
had children together;
shared expenses;
described each other as spouses; or
believed they had the same inheritance rights as a married couple.
The intestacy provisions use a narrower meaning of spouse that generally requires a legal marriage.
A surviving common-law partner may have other possible legal rights depending on the circumstances.
For example, the partner may be:
a named beneficiary of an insurance policy or registered account;
a surviving joint owner of property;
entitled to their own property;
eligible to bring a dependant-support claim; or
able to assert another recognized property claim, such as unjust enrichment or constructive trust.
These are separate legal questions. They do not make the common-law partner an automatic intestate beneficiary — and Ontario courts have shown that pursuing them comes with strict deadlines.
How the Courts Have Applied This: Ingram v. Kulynych Estate
The Ontario Court of Appeal's 2024 decision in Ingram v. Kulynych Estate illustrates why the distinction between a married spouse and a common-law partner matters in practice, and why timing matters just as much as entitlement. [8]
Kathleen Ingram had lived with Henry Kulynych in a common-law relationship for roughly 18 years before his death in 2017. His will, prepared decades earlier, left his estate to his children and made no provision for her. Ms. Ingram argued that she had supported him financially and provided care throughout the relationship, and that he had benefited from living in her home while renting out his own and keeping the income. More than four years after his death, she brought a claim for a share of the estate based on unjust enrichment and constructive trust — legal doctrines that can sometimes compensate a person who contributed to another's property without a corresponding benefit in return.
The estate trustee argued the claim was too late. The legal issue on appeal was narrow but consequential: did a two-year limitation period under the Trustee Act, or a ten-year period under the Real Property Limitations Act, apply to a claim of this kind against an estate?
The Court of Appeal sided with the estate, holding that the shorter, two-year limitation period governs equitable claims like unjust enrichment brought against an estate, even where the claim relates to real property. Because Ms. Ingram had waited more than four years, her claim was barred.
The decision attracted attention among estates lawyers because it resolved conflicting lower-court approaches to a recurring problem, and because it underscored a hard reality for common-law partners: unlike a married spouse, who inherits automatically under the Succession Law Reform Act regardless of when they come forward, a common-law partner pursuing a property-based claim against an estate generally has only two years from the date of death to act. The case did not change the underlying rule that common-law partners are excluded from automatic intestacy — it confirmed how narrow the window is for the alternative legal routes available to them.
What Happens When There Is No Surviving Married Spouse?
If there is no surviving married spouse entitled to inherit, the estate generally passes through the deceased's family in a legal order established by the Succession Law Reform Act.
Children and Other Descendants
If the deceased had children, the children generally share the estate.
If a child died before the deceased but left descendants, those descendants may receive that child's share.
Parents
If the deceased had no surviving spouse or descendants, the estate generally passes equally to the deceased's surviving parents.
If only one parent is alive, that parent generally receives the estate.
Brothers and Sisters
If the deceased had no surviving spouse, descendants or parents, the estate generally passes to the deceased's brothers and sisters.
If a brother or sister died before the deceased, that sibling's children may be entitled to inherit their parent's share.
Nieces and Nephews
If no brother or sister survives, but the deceased had nieces or nephews, the estate may pass among them according to the statutory rules.
Other Next of Kin
If none of these relatives survives, the estate may pass to the deceased's nearest next of kin.
Next of kin means the closest blood relatives identified under the legal rules of family relationship. It does not simply mean the person who was emotionally closest to the deceased.
Friends, neighbours, caregivers, unmarried partners and unrelated chosen family members do not inherit merely because no close relative was involved in the deceased's life.
Do Stepchildren Inherit?
A stepchild does not ordinarily inherit under Ontario's intestacy rules unless the stepchild was legally adopted by the deceased.
This can produce unexpected results in blended families. A person may have raised and supported a stepchild for many years, but the stepchild may receive nothing from the estate if there is no Will and no legal adoption.
What Happens If No Relatives Can Be Found?
If there is no person entitled to inherit under Ontario's intestacy rules, the estate may eventually pass to the Crown.
This is sometimes described as the estate escheating to the Crown.
Before that occurs, searches may be conducted for relatives, including distant family members. Genealogical records, birth records, marriage records and other historical documents may be used to determine whether an heir exists.
Are Debts Paid Before Beneficiaries Receive Anything?
Yes. Beneficiaries generally receive only what remains after the estate's proper debts, taxes and expenses have been addressed.
These expenses may include:
funeral and burial expenses;
income tax;
mortgages and secured debts;
credit cards and personal loans;
legal and accounting expenses;
estate administration costs; and
other valid creditor claims.
A beneficiary's expected inheritance may therefore be reduced or eliminated if the estate has significant debts.
Beneficiaries are not normally personally responsible for the deceased's debts merely because they are related to the deceased. However, separate responsibility may exist where a person jointly signed for a debt, guaranteed it or was otherwise independently liable.
What Is Probate?
Probate is the commonly used name for the court process through which an estate trustee's legal authority is formally recognized. When there is no Will, the application is generally for a Certificate of Appointment of Estate Trustee Without a Will.
Banks, investment companies, land-registration authorities and other institutions may require this certificate before releasing or transferring estate assets.
Probate does not itself decide every estate dispute. Its principal purpose is to establish the estate trustee's authority to deal with the assets covered by the certificate.
Is Estate Administration Tax Payable?
Estate Administration Tax may be payable when an application for an estate certificate is made. Ontario currently calculates the tax based on the value of the estate covered by the certificate:
no tax is payable on the first $50,000; and
$15 is payable for every $1,000, or part of $1,000, above $50,000. [5]
Certain assets that pass outside the estate may not be included in the value used for the certificate. The treatment of a particular asset depends on its ownership and legal status. The estate representative may also be required to file an Estate Information Return with the Ontario Ministry of Finance after the certificate is issued. [5]
What Happens to Income Tax?
Death does not end a person's tax obligations.
The deceased's legal representative may be responsible for:
notifying the Canada Revenue Agency;
filing the deceased's final income-tax return;
filing any additional estate or trust returns;
paying taxes from estate funds; and
obtaining information about the deceased's accounts.
The Canada Revenue Agency provides information for legal representatives dealing with the tax affairs of someone who has died. [6]
Can the Family Simply Divide the Estate Informally?
Family agreement does not remove the estate trustee's legal responsibilities.
The estate trustee must identify the lawful beneficiaries, deal with debts and taxes, maintain records and distribute the estate according to the governing law.
In some situations, adult beneficiaries may agree to a different distribution through a properly documented arrangement.
However, complications may arise when:
a beneficiary is under 18;
a beneficiary lacks legal capacity;
creditors remain unpaid;
taxes have not been resolved;
not all beneficiaries agree; or
the arrangement affects another person's legal rights.
An informal division of estate property can create personal liability for the person handling the estate.
Why This Area of Law Is Changing
Ontario's intestacy scheme is not static. Several changes to the Succession Law Reform Act introduced by the Accelerating Access to Justice Act, 2021 took effect on January 1, 2022, and their practical impact is only now becoming fully apparent.
One of those changes prevents a legally married spouse from inheriting on an intestacy — or benefiting under an existing will — where the couple was separated at the time of death under specific statutory conditions, such as having lived separate and apart for three years, having signed a valid separation agreement, or being subject to a court order or arbitration award resolving their affairs. [1] Because the three-year separation pathway only counts time after January 1, 2022, cases involving spouses who meet that threshold began to arise as of early 2025, and the courts and estates bar are still working through how the provision applies to real-world fact patterns.
Separately, the exclusion of common-law partners from automatic intestacy rights has drawn sustained attention from legal commentators. Estates and trusts organizations have noted that a growing share of Ontario couples live common-law rather than marry, and have questioned whether a framework built around the assumption of legal marriage still reflects how many families are actually structured. No legislative change extending automatic intestacy rights to common-law partners has been enacted in Ontario as of this writing, and the question remains a subject of ongoing academic and professional discussion rather than settled law.
Why the Intestacy Rules Matter
Ontario's intestacy rules provide an orderly system for distributing an estate when no valid Will exists. Without these rules, families and courts would have no consistent starting point.
However, the rules are based on legal family relationships rather than the deceased's personal wishes.
Dying without a Will may mean that:
a common-law partner receives no automatic inheritance;
a stepchild receives nothing;
a separated married spouse may or may not inherit depending on the statutory requirements;
a friend or caregiver receives nothing;
charities receive nothing;
family members must determine who will apply to manage the estate;
minor children may become entitled to money without the trust structure the deceased might have preferred; and
disputes and administrative delays may arise.
The intestacy rules do not punish a person for failing to make a Will. They provide a default legal plan where the deceased left no valid instructions.
That default plan may work reasonably for some families. For others, particularly common-law couples, blended families and people with important non-family relationships, the result may differ substantially from what the deceased expected, and, as recent case law shows, the alternatives available to those left out of that plan can carry their own strict deadlines.
Ontario law ultimately determines which property belongs to the estate, who may administer it and which relatives are entitled to inherit. The process begins with identifying the estate assets and liabilities, determining whether any property passes outside the estate and applying the statutory order of inheritance to what remains.
References
[1] Succession Law Reform Act, R.S.O. 1990, c. S.26, Ontario Legislature, particularly Part II governing intestate succession, and the amendments made by the Accelerating Access to Justice Act, 2021, S.O. 2021, c. 4, in force January 1, 2022: https://www.ontario.ca/laws/statute/90s26
[2] Family Law Act, R.S.O. 1990, c. F.3, Ontario Legislature, section 29 definition of "spouse" for support purposes: https://www.ontario.ca/laws/statute/90f03
[3] Ontario Ministry of the Attorney General, "Apply for probate of an estate," including applications for a Certificate of Appointment of Estate Trustee Without a Will: https://www.ontario.ca/page/apply-probate-estate
[4] Preferential Share Regulation, O. Reg. 54/95 under the Succession Law Reform Act, establishing the $350,000 preferential share for deaths occurring on or after March 1, 2021: https://www.ontario.ca/laws/regulation/950054
[5] Ontario Ministry of Finance, "Estate Administration Tax," including the current tax calculation and Estate Information Return requirements: https://www.ontario.ca/page/estate-administration-tax
[6] Canada Revenue Agency, "What to do when someone has died," information concerning final tax returns and the responsibilities of a legal representative: https://www.canada.ca/en/revenue-agency/services/tax/individuals/life-events/what-when-someone-died.html
[7] Estates Act, R.S.O. 1990, c. E.21, Ontario Legislature, governing estate administration and court authority concerning estate trustees: https://www.ontario.ca/laws/statute/90e21
[8] Ingram v. Kulynych Estate, 2024 ONCA 678, Court of Appeal for Ontario, addressing the limitation period applicable to equitable trust and unjust enrichment claims brought by a common-law partner against an estate: https://www.canlii.org/en/on/onca/doc/2024/2024onca678/2024onca678.html
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