What Happens If I Die Without a Will?

There seems to be a common misconception that the government takes your estate if you die without a will – but this is not true. In Ontario, when a person dies intestate (without a will), the Succession Law Reform Act (“SLRA”) governs how the estate will be distributed. This distribution varies depending on the (1) value of the estate, (2) the marital status of the deceased, and (3) the family alive at the time of death.

An exception to the rules under the SLRA arises, however, if the deceased was married at the time of death. In this case, Section 6 of the Family Law Act (FLA) is triggered, which grants the surviving spouse an option to elect an equalization payment under the FLA, in lieu of their entitlement under the SLRA. However, For the sake of this discussion, I will be limiting my focus to the latter.

The following examples provide an illustration of how distribution would occur in a number of circumstances following the deceased’s death.

Scenario 1: Spouse with no children

If the deceased dies intestate with a spouse and no children, the spouse will inherit the entirety of the deceased’s estate.

Scenario 2: Estate worth LESS than the Preferential Share + Spouse + 1 or More Children

If the deceased dies Intestate with an estate having a net value of less than the Preferential Share the spouse will be entitled to the property absolutely.

** NOTE: The value of the “Preferential Share” is prescribed by law, and is currently $200,000.00**

Scenario 3: Estate worth MORE than the Preferential Share + Spouse + 1 Child

If the deceased dies intestate with an estate valued in excess of the Preferential Share, the spouse is entitled to ½ of the Estate + the Preferential Share. The remaining 1/2 will be inherited by the child.

Scenario 4: Estate worth MORE the Preferential Share + Spouse + 2 or more Children

If the deceased dies intestate with an estate with a net value in excess of the Preferential Share and has more than one child, the spouse is entitled to 1/3 of the Estate + the Preferential Share. The remaining 2/3 is divided equally among the surviving children. (See

Figure 1)

--> If one, but not all, of the children of the deceased was not alive at the time of the deceased’s death, but that child left surviving issue (i.e. grandchildren or great‐grandchildren of the deceased), that child’s share would be divided equally among his/her own children (See Figure 2)

--> If NONE of the children were living at the time of their parent’s death, but they left surviving issue (i.e. grandchildren or great‐grandchildren of the deceased), the surviving issue would share equally in the remaining 2/3. (See Figure 3)

Scenario 5: No Spouse, no Issue, no Grandchildren

If a person dies with no spouse, no children and no issue, the deceased’s parents will inherit the estate equally.

Scenario 6: No Spouse, no Issue, no Parents

If a person dies intestate and there is no surviving spouse, issue or parent, the property will be distributed among the surviving brothers and sisters of the intestate equally.

--> If one, but not all, of the brothers or sisters of the deceased was not alive at the time of his death, that brother or sister’s share would be divided equally among his/her own respective children

--> If NONE of the brothers or sisters were alive at the time of the deceased’s death, the estate will be distributed among all the nephews and nieces of the intestate equally.

It is only where a person dies intestate and there is no surviving spouse, issue, parent, brother, sister, nephew, niece or next of kin, that the property becomes the property of the Crown.

Consequently, while dying without a will does not mean that your estate will automatically go to the government, it does mean that you will lose control of how your estate is distributed. It also means that your common law partner will not be provided for, your children have no provisions for guardianship or financial care, the administration of the estate could be delayed and you could suffer unnecessary tax consequences.

Thinking about death isn’t fun, but not planning for it is worse. Making a will should be a top priority to ensure your loved ones are cared for and to avoid leaving them with the stress and frustration that comes with an intestate estate. If you need assistance, please give us a call. We would be glad to help. ⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀ ⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀ #will #willsandestates #lawyer #torontolawyer #trusts #torontowill #attorney #estateslaw #vaughanlawyers #lawyerlife #wills #estateplanning #torontoestateslawyer #torontoestates #girlboss #bossbabe #femalelawyer⁣ ⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀ ⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀ Disclaimer: the information provided herein is not legal advice and is provided for informational and educational purposes only.