How Is The Estate Distributed If There Is No Will?

When a person dies without leaving a Will, that person is said to die intestate; the result is an intestacy. An intestacy is usually more difficult and time consuming to administer than an estate governed by a Will.

This post answers the question of how the estate is distributed when the deceased did not leave a Will.

In Ontario, it is the Succession Law Reform Act (SLRA) that governs who inherits upon an intestacy. If the deceased is survived by a spouse and had no children, the spouse will inherit the entire estate. It is very important to note that the definition of “Spouse” for determining intestate inheritance ONLY includes a legally married spouse. If the deceased and the surviving common-law partner were never legally married, the surviving common-law partner will not inherit anything under the SLRA intestacy scheme.

If the deceased is survived by a spouse and children, the SLRA becomes more complicated to navigate. This is because a surviving spouse is entitled to the “Preferential Share” on intestacy. At the time this article was posted, the Preferential Share is $200,000.00. If the estate is worth $200,000.00 or less, the surviving spouse is entitled to the entire estate.

If the estate is worth more than $200,000.00 and there is a surviving spouse, we must answer a second question: how many children did the deceased have? If the deceased is survived by a spouse and one child, the spouse takes the Preferential Share and the remaining amount is split 50/50 among the spouse and the child. If the deceased is survived by a spouse and two or more children, the spouse takes the Preferential Share and one-third of what remains, the other two-thirds is split among the surviving children.

If any of the deceased’s children passed away prior to the deceased but had children of their own, the surviving grandchildren stand in the place of their deceased parent.

Parents

If the deceased is not survived by a spouse or any children (or other issue), the estate is distributed to the surviving parent(s).

Brother and Sister

If the deceased is not survived by a spouse, children (or other issue) or parents, then the estate is distributed to the surviving brother and sister. If the deceased had any brothers or sisters that predeceased the deceased, the children of the deceased brother or sister stand in the place of their deceased parent.

Nephew and Niece

If the deceased is not survived by a spouse, children (or other issue), parents, brothers or sisters or children of any deceased brothers or sisters, then the estate is distributed to the nephews and nieces of the deceased.

Next of Kin

If the deceased is survived by a spouse, children (or other issue), parents, brothers or sisters, children of any deceased brothers or sisters or nieces and nephews, the estate is distributed to a more remote next of kin not yet mentioned. When distributing an intestacy to more remote next of kin, it can get really complicated.

Escheat

If the deceased is not survived by any of the above-mentioned people, the deceased’s property goes to the government.

An intestacy can be very complicated to navigate. If you have any questions, please do not hesitate to contact us. Below is some of the questions we will be asking you. This is a very simplified list of questions and is not intended to represent a comprehensive set of questions for determining how an intestacy is distributed.

1. Is there a surviving spouse (spouse is defined as legal married)?

2. Is the estate worth more or less than $200,000.00?

3. Is there a surviving child?

4. Are there two or more children?

5. Have any children predeceased the deceased? If so, did that deceased child have any children?

6. Are there any surviving parents?

7. Did the deceased have any brothers or sisters?

8. Did any of the brothers or sisters predecease the deceased? If so, did the predeceased brother or sister have any children?

9. Did the deceased have any nephews or nieces?

10. Did the deceased have any next of kin not yet listed?

11. Does the estate escheat to the Crown?