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When someone dies without a will in Ontario, the law decides what happens to their assets. This situation is called dying intestate. Ontario has specific laws under the Succession Law Reform Act that outline how assets will be divided when an individual dies intestate.
While these laws provide a framework for estate division, they are impersonal and do not account for unique family relationships or individual preferences.
Most importantly common law unions are not protected.
Ontario Intestacy Rules
The distribution of assets under the Ontario Succession Law Reform Act depends on if the deceased has a legal spouse or children. The intestacy rules in Ontario are as follows:
Legally Married Spouse and No Children: The legally married spouse gets everything.
Legally Married Spouse and Children: The spouse is entitled to the first $350,000 of the estate. Remaining assets are divided between the spouse and children. If there is one child, the spouse and child each receive half of the remaining balance. If there are two or more children, the spouse receives one-third, and the children equally share the other two-thirds.
Children But No Spouse: Children split the estate equally. If a child has died, their share goes to their children (the deceased’s grandchildren).
No Spouse or Children: The estate passes to the parents. If the parents are no longer alive, it is divided among siblings. If there are no siblings, it goes to other relatives.
No Relatives: If no relatives can be found, the estate assets become the property of the government.
Challenges of Dying Without a Will in Ontario
As an estate lawyer, I’ve seen firsthand how dying without a legally valid will can lead to unnecessary stress, financial hardship, and conflict for surviving family members. In Ontario, dying intestate can create significant challenges for loved ones, especially for common-law partners and minor children.
Many people assume that their common-law partner will automatically inherit their estate, but this is not the case under Ontario law. Common-law partners are not entitled to inherit unless explicitly named in a will. This leaves the surviving partner in a vulnerable position.
For minor children, the absence of a will can also result in complications. If minors inherit assets under the intestacy rules, their share is managed by the Office of the Children’s Lawyer, an Ontario government agency, until they reach the age of 18. At that point, the child receives their entire inheritance in a lump sum, regardless of whether they have the financial literacy or maturity to handle it. This often leads to poorly managed funds or the quick depletion of assets that were meant to support the child long-term.
Family conflicts are another common issue when there is no will. Disputes over how the estate should be divided can escalate quickly, leading to costly litigation. Lengthy court battles not only diminish the estate’s overall value but also create deep divisions among family members.
Further, in the absence of a will in Ontario, the court appoints an estate trustee (also known as an executor) to administer the deceased’s estate. The court follows a priority system for appointing the estate trustee. First in line is the surviving spouse (excluding common-law partners), followed by children, then other family members, and, if necessary, other interested parties like creditors or professional administrators. Court involvement often leads to delays and added costs and the court’s selection may not align with what the deceased would have wanted. For example, an estranged family member might be appointed as estate trustee simply because they have legal standing, while someone the deceased trusted more, such as a close friend, is overlooked.
Overall, failing to have a will in place creates uncertainty, exposes loved ones to unnecessary legal and financial burdens, and increases the likelihood of disputes.
Benefits of Having a Will
Drafting a will is a straightforward yet powerful way to ensure that assets are distributed according to one’s wishes. Having a will minimizes stress for those left behind and provides peace of mind for all involved.
One of the primary advantages of having a will is the ability to tailor asset distribution. It allows for the deliberate allocation of assets to specific individuals or organizations, including common-law partners, friends, and charitable causes.
Through proper estate planning, including the use of trusts in a will, parents can protect their young children by setting conditions or staggered distributions to ensure financial stability well into adulthood.
A will also enables individuals to select a trusted executor to manage their estate, instead of having one appointed by the court. This choice can make the probate process more efficient and ensures that the estate is handled according to the individual’s preferences.
Additionally, strategic estate planning through a will also offers financial benefits. By carefully considering the distribution of assets and any potential tax liabilities, individuals can minimize probate fees and other taxes, preserving a larger portion of the estate for their beneficiaries. This is especially important in Ontario, where probate fees can significantly reduce the overall value of an estate.
To create a will that reflects your wishes and covers all necessary legal details, consider consulting with an experienced estate lawyer. Taking action now can save your family unnecessary stress, money, and conflict.
At E is For Estates we offer Estate Planning services and can help you draft a comprehensive estate plan that reflects your priorities while safeguarding your family’s legacy for future generations.
This article is intended for informational purposes only. For personalized advice tailored to your specific circumstance, please reach out to the E is for Estates team.
Erin Watson, J.D., B.A.
Barrister & Solicitor
E is for Estates