What is Intestacy?

2 Minute Read

Over 50% of Canadians do not have a Will. This means that almost 19 million Canadians are at the risk of passing without a Will in place. But what happens if you die without a Will?

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If someone dies without a Will (known as dying intestate), their estate is administered according to the laws of intestacy outlined in the Ontario Succession Law Reform Act (SLRA). In the case of intestacy, the Court will appoint an estate trustee to administer an estate according to intestacy rules and issue a “Certificate of Appointment of Estate Trustee without a Will.”

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If you die intestate, your estate will be distributed according to the following rules, as outlined in the SLRA:

• If you have a married Spouse, but do not have children, your entire estate will be left to your spouse
• If you have a married Spouse and one child, your spouse will receive the “preferential share” (the first $200,000). The remainder will be divided between your spouse and child 50/50.
• If you have a married Spouse and more than one child, the first $200,000 will go to your spouse. The remainder of the estate will be divided as follows: 1/3 to the spouse, 2/3 to the children, divided equally. If only grandchildren survive, they would share the estate equally (per capita).
• If you have Children, but no Spouse, all children share the estate equally
• If you do not have Children or a Spouse, your entire estate will go to your parents. If both of your parents are deceased, your siblings will share in the estate equally
• If there is no next of kin, the estate escheats or goes to the Crown (government).

If your children are minors, and there is no trust set up, their entitlement is paid to the Accountant of Ontario, where it will be held until the minor reaches the age of 18.

If you have a common-law spouse, they do not have property rights and will not qualify for the preferential share. They may end up with nothing.

In January 2021, section 43.1 of the SLRA was amended to exempt separated spouses from intestacy rules listed above, to ensure fairness in estate distribution where there is marriage breakdown.

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Intestacy rules are inflexible, formulaic, indifferent to your personal preferences. They may ultimately benefit the wrong people. It is important to create an estate plan as early as possible in your lifetime.

We at Sweatman Law have more than 30 years of experience in helping clients navigate estate administration without a Will from start to finish. Reach out to us here to get in touch!

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DISCLAIMER: This blog post should not be interpreted as legal advice for your specific situation, concerns, or challenges. All estate situations are unique and should be reviewed by legal, financial, and health professionals, and tax accountants. Please be advised that the information on this website relates to laws specific to Ontario or Canadian federal law. Legal advice, procedure, and legislature may vary in different jurisdictions.