What happens when you die without a will?

March 2011

Do you need a will? The best answer is to know what happens to your property when you die without a will.

The Succession Law Reform Act of Ontario ("Act") establishes a code for distribution of intestate estates ("code"), that is, where a person dies without a will. This scheme of distribution may not please you.

Firstly, let's do away with the myth that the government takes it all when a person dies without a will. This myth is spread by several "know-it-alls." If the government ends up taking your entire estate, it means that you have died without leaving any relatives, even a very remote one. In most cases, it is possible to find a relative, even if he or she lives on another continent.

Let us examine this code. Firstly, the spouse is at the top of the pyramid. The spouse receives the entire estate if there is no issue surviving. For purposes of the Act, "spouse" means a legally married spouse. If there is issue, the spouse receives a preferential (or preferred) share of $200,000.00. The balance of the estate over and above the preferential share is shared among the spouse and the issue of the deceased; the proportions depend on the number of children of the deceased. Moreover, if some of the children of the deceased died before him or her, the issue of such deceased child would participate in the distribution. If there is no spouse, but only issue, the issue will share the entire estate. If there is at least one child surviving, and the others died before the deceased but leaving issue, another form of distribution comes into play.

If there is no spouse and no issue, the father and mother of the deceased will share the estate. If there is only the father or the mother living, then he or she receives the estate.

If there is no spouse, no issue, no father and no mother, then the brothers and sisters will share the estate. If one or more of the brothers and sisters have died before the deceased, and assuming the deceased brothers and the deceased sisters left children, then their children would share the portion of the estate that their father (the deceased brother) or mother (the deceased sister) would have received had they been alive at the time of the death of the deceased.

If there is no spouse, no issue, no father and no mother, no brother and no sister, the estate would be shared among the nephews and nieces of the deceased. Then, if there is no spouse, no issue, no father, no mother, no brother, no sister, no nephew and no niece, the estate is shared among the next-of-kin of equal degree of consanguinity. Finally, if even those next-of-kin do not exist, then your good government takes it all. Therefore, be wise and see to your affairs!

Raymond H. Gouin
2276 St. Joseph Blvd
Orléans, ON
K1C 1E8

Phone: (613) 830-0681
Fax: (613) 830-4826