If you die without a Will, your remaining family members will need to bring a court application in order to be able to officially act as the Executor and Estate Trustee (called an “Application for Certificate of Appointment of Estate Trustee without a Will”). The
cost of doing so could easily run into the thousands of dollars if there is any disagreement regarding which family member should act as your estate’s Executor and Trustee.

When you die without a Will, the Court appointed Executor must distribute your estate according to what are called the “intestacy rules” under the Succession Law Reform Act of Ontario.

• If you were married but did not have any children, your estate passes to your spouse.

The key word in the sentence above is “married”. The intestacy rulesdo NOT apply to common law spouses. Therefore, if you are in a common law relationship and want to leave any part of your estate to your common law partner, you MUST set this out in a written Will. If you don’t, your common law spouse will need to bring a claim in court in order to receive any estate assets.

• If you were married, with children, and your estate is worth less than $200,000 (called the “preferential share”), your estate passes to your spouse.
• If you were married, with one child, and your estate is worth more than $200,000, anything above $200,000 will be divided in half, with one half passing to your child and the remaining half to your spouse.
• If you were married, with more than one child, and your estate is worth more than $200,000, anything above $200,000 will be divided into thirds, with one third passing to your spouse and the remaining two thirds to your surviving children, divided equally.

• If you are not married, but have children, your estate will be divided equally among your children.

• If you are not married and do not have any children, your estate will be divided equally between your parents. If neither parent is alive, your estate will be divided equally among your siblings. If you do not have any surviving siblings, your estate will pass to your grandparents, then to nieces and nephews, and then to next of kin. Finally, if no next of kin can be located, your estate becomes the property of the Crown.

Children under the age of 18 cannot inherit property under Ontario law. So if you died without a Will your child’s share of the Estate would be paid into Court until he or she turned 18. It would then be paid out with no restrictions.