Nobody likes to think about their own mortality, but planning for what happens to your personal belongings and assets when you die, is crucial.

In Ontario, if you pass away without a will, you die intestate, meaning that the province’s Succession Law Reform Act (SLRA) will dictate how your assets are distributed. The consequences of this can be significant for your loved ones, especially if you have strong preferences for how your estate should be handled.

Here’s what happens to your estate:

Court-Appointed Estate Administrator

If you die without a will, there’s no executor appointed to manage your estate. Instead, a family member must apply to the court to be named as the estate administrator. This person is responsible for handling your assets, paying off debts, and ensuring the distribution of your belongings according to Ontario’s intestacy laws. If no family member steps forward, the court can appoint someone to fulfill this role.

How Your Assets Are Distributed: The Intestacy Rules

Ontario’s SLRA has a specific set of rules about how your estate will be divided, depending on your family situation. These rules may not always reflect how you’d want your assets distributed. Here are some of the common scenarios:

Married with Children

If you are married and have children, your spouse receives the first $350,000 of your estate, which is called the preferential share. If your estate is worth more than $350,000, the remainder is divided as follows:

• If you have one child, your spouse receives half of the remaining estate, and your child receives the other half.
• If you have more than one child, your spouse receives one-third of the remaining estate, and the rest is divided equally among your children.

(Of note, the SLRA has recently been amended to consider spouses living separately for more than three years as divorced meaning they are no longer considered as still married for intestacy purposes.)

Married with No Children

If you are married but do not have any children, your spouse inherits everything. This includes your home, bank accounts, investments, and any other assets you own.

Children but No Spouse

If you have children but no surviving spouse, your estate will be divided equally among your children. If one of your children has already passed away but left children (your grandchildren), their share will go to your grandchildren.

No Spouse and No Children

If you have no spouse or children, your estate will be distributed to your closest next of kin. The order of priority is:

• Parents
• Siblings (if no parents are alive)
• Nieces and nephews (if no siblings are alive)

If you have no surviving parents, siblings, nieces, or nephews, your estate will go to more distant relatives such as aunts, uncles, or cousins.

No Family at All

If no relatives can be found, your estate will eventually pass to the Ontario government. This process is called escheat [pronounced “uhs-cheet”). To avoid this outcome, it’s important to have a will in place, especially if you don’t have immediate family but want your estate to go to a friend, charity, or another cause.

What About Common-Law Partners?

It’s important to note that in Ontario, common-law partners do not have the same rights as married spouses when it comes to intestacy. If you die without a will, your common-law partner does not automatically inherit your estate. They would have to make a legal claim for support or a share of the estate through the courts, which can be a lengthy and expensive process.

If you’re in a common-law relationship, it’s essential to have a will to ensure your partner is provided for in the event of your death.

What Happens to Personal Belongings and Sentimental Items?

Your personal belongings, including your home, car, jewelry, electronics, and other assets, will be subject to the same distribution rules mentioned above. Without a will, there’s no way to ensure that specific items, such as family heirlooms or sentimental possessions, are passed down to the people you would have wanted to receive them. For example, if you want a friend or distant relative to inherit a specific item, this won’t happen unless it’s detailed in a will.

Trusts for Minor Children

If any of your beneficiaries are minor children (under the age of 18), their inheritance will be held in trust until they reach adulthood. The Office of the Children’s Lawyer oversees the management of these funds until the child turns 18. Without a will, you have no control over how the funds are managed or distributed during the child’s lifetime, which can be a concern if the inheritance is substantial or if the child has specific needs.

If you do not currently have a will, speak to your family lawyer or if you don’t have one contact your Foster & Associates advisor to help you get started.

Disclaimer: This article is for general information purposes only, and is not legal, financial, or tax planning advice.   Everyone’s situation is unique, and this article cannot apply to every person.  The reader should not take any action, or refrain from taking any action, as a result of this article without first obtaining legal or professional advice.