What Happens If Someone Dies Without a Will in Canada?

What dying “intestate” means

Dying without a valid will is called dying “intestate.” When this happens, the deceased’s property is not distributed according to their wishes, because there is nothing in writing to follow. Instead, a statute steps in and dictates who inherits, in what order, and in what shares. Which statute applies depends on where the deceased lived and, in some cases, their legal status.

In Ontario, this is governed by the Succession Law Reform Act, and Ontario’s government describes the situation plainly: “when a person does not have a valid will when they die, it is called an intestacy.” In Alberta, the Wills and Succession Act (in force since February 1, 2012) consolidated several older statutes, including the former Intestate Succession Act, into a single act that “specifies how and to whom property is transferred” when someone dies, with or without a will. Federally, a distinct rule applies to status Indians who die while ordinarily resident on a reserve: the Indian Act sets up its own intestacy scheme, administered by the federal Minister, separate from the provincial rules described below.

Who inherits in Ontario

Under Ontario’s Succession Law Reform Act, an intestate estate generally passes to the surviving spouse and the closest next-of-kin, following an order set out in the Act. A common-law spouse does not inherit under this Act, regardless of the length of the relationship.

A married spouse has a choice to make. Within six months of the date of death, a surviving spouse can elect between an equalization payment under section 5 of the Family Law Act (the same calculation used on separation) or their entitlement under Part II of the Succession Law Reform Act. Missing that six-month window forecloses the option to choose the Family Law Act route.

If a child inherits under an intestacy, the money cannot simply be held by the estate trustee (the person administering the estate) until the child grows up. Instead, the child’s share is paid into court, to be held and managed by the Accountant of the Superior Court of Justice, or by a court-appointed guardian of property, until the child turns 18.

Who inherits in Alberta

Alberta’s Wills and Succession Act sets the distribution scheme for an intestate estate, and a related regulation, the Preferential Share (Intestate Estates) Regulation, governs the share a surviving spouse or adult interdependent partner receives before the remainder of the estate is divided among other heirs.

Separately, for married couples, Alberta’s Dower Act gives a surviving spouse a life estate (the right to live in the property for life) in the couple’s homestead, along with rights to the deceased’s personal property. This is a protection layered on top of the ordinary estate distribution, and it applies specifically to married spouses in relation to the family home.

Federal rules for status Indians on reserve

Where a status Indian dies intestate while ordinarily resident on a reserve, the Indian Act applies instead of, or alongside, provincial intestacy law. Under section 43, the Minister may authorize administrators to handle the estate. Under section 48, where the deceased leaves children (“issue”), the estate is distributed per stirpes (by family branch) among them, subject to the survivor’s rights; where there is no survivor or children, the estate goes to the deceased’s parents equally, or to the surviving parent if one has died.

A surviving spouse or common-law partner also has a preferential share: if the net value of the estate does not exceed $75,000, or another amount fixed by the Governor in Council, the estate goes entirely to the survivor. Above that threshold, the remainder is divided on a graduated basis depending on the number of children.

If there is no one to administer the estate

Sometimes there is no will and no obvious person willing or able to step in as executor. In Ontario, the Office of the Public Guardian and Trustee (OPGT) may apply to be appointed as estate trustee of last resort. This applies where the deceased died without a will and there are no known next-of-kin living in Ontario, or the next-of-kin who exist are minors or adults who lack the legal capacity to act. Being formally appointed as estate trustee in Ontario requires a Certificate of Appointment of Estate Trustee, which is Ontario’s formal process for what is often called “probate.”